In the light of the above statement, critically assess the current operation of the law relating to the acquisition of easements by prescription.
In this question I will attempt to review the current operation of the law in regards to prescriptive easement.
Easements and profits may be acquired as a result of prolonged use, i.e. by prescription, in addition to express easements through deeds or implied grants. There are three co-existing methods of prescriptive acquisition for easements and profits; (i) common law prescription; (ii) the doctrine lost modern grant; and (iii) the Prescription Act 1832. For a person to be successful in his claim for prescriptive easement he must satisfy detailed rules set out in any of the three forms of prescription. There are rules which are common in all three forms of prescription.
The third condition is without permission. One obvious case is where the servient owner receives an annual sum from the claimant; this shows a continuing element of permission.  If permission is asked or consent given then the servient owner would be acknowledging that no right exist and would go against prescription  . Providing the servient owner knows of the act and tolerates such act the user is ‘as of right’.
Another common rule to all three forms of prescription is that the user must be continuous. In the case of Hollins v Verney  , the Court rejected the claim for a prescriptive easement, based on the fact that the right had only been exercised on three occasions each separated by a period of 12 years.
An additional requirement to be fulfilled is that the user must be by or on behalf of a fee simple owner against a fee simple owner. The requirements are also more specific. The user must be against a fee simple owner of the servient tenement and the dominant tenement user must be by or on behalf of a fee simple owner. If the user is on behalf, the claim for an easement will be for the fee simple owner, but the tenant may enjoy the benefit during his lease, as demonstrated in the case of Palk v Shinner  . Also a tenant cannot prescribe for an easement against his landlord or vice versa.
The second method of prescription is the doctrine of lost modern grant. The doctrine allows a ‘user as of right’ who can provide evidence of 20 years in modern times i.e. after 1189, a prescription for easement. The support of this doctrine is based on fiction, it concedes that the user cannot prove ‘user as of right’ back to 1189, but allows the prescription of a modern grant through evidence, and presumes that the deed has been lost. This is the advantage of lost modern grant over common law prescription, lost modern grant does not presume user since time of immemorial, only from ‘modern times’.
So it would appear while the presumption cannot be rebutted by proving that no grant has in fact been made. Thought the presumption of lost modern grant can be rebutted by showing throughout the period the grant existed there was no person legally competent to make a grant.
The final means of acquisition of easements is prescription under the Prescription Act 1832. The initial aim of the Act was to remove the complications and absurdity from the other two methods of prescription, unfortunately, the provisions were very badly drafted and created complications of its own. At present all three methods exist side by side. The Act covers situations which are not covered by the other two methods.
For an easement to arise from the Act, the right must have been in continuous use for the last 20 years, this is the short period. After this time the easement is prescribed, but capable of challenge. After 40 years (long period), of ‘user as of right’ for easements, the right becomes absolute, it can no longer be rebutted. The Act does not remove the standard requirements as mentioned before for the other two methods.
The Prescription Act has certain requirements which stand alone from the other two methods. Section 4 of the Prescription Act 1832 states the relevant period in each case is that ‘next before action’. This requirement means that however long the period of ‘user as of right’, no absolute right is acquired until it is established in action  . The Act would be of no use and one of the other two methods would have to be used. Also another requirement is that the user must be ‘without interruption’. Interruption is classed as anything more than a year.
The need for reform and update has been present for a long time, but no action has been taken. Common law prescription is out of date, bizarre and ineffective in application. Lost modern grant provides some sense of stability for prescription but is based on ‘legal fiction’; as a result the courts have held that it can only be relied upon if the other forms of prescription fail. The Prescription Act was introduced to bring vital structure and facilitate the prescription of easements, though it would seem it created more complexity and problems.
It seems the single most important point is the elimination of the existing methods of prescription and replaced with a single statutory method and to set this as the starting point of the new reform. Choosing set ideas such as a qualifying period for prescription i.e. 20 years. Other changes need to follow in this, it would be recommended to keep ‘as of right user’; as well as the requirements of nec vi, nec clam and nec precario.
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