Making Land Work: Easements, Covenants and ... - Law Commission

3.77 Prescription may also give rise to practical problems. As there is no express grant
involved, it is unlikely that there will be documentary evidence of the existence of
an easement acquired by prescription. The prescription period may have been
completed in the distant past, and there may be no recent evidence of enjoyment
of the right, 71 so that even the most careful of purchasers can be taken by
surprise. The lack of written form or evidence also makes it more difficult to
determine the precise nature and extent of an easement acquired by prescription.
The provisions of paragraph 3 of schedule 3 to the Land Registration Act 2002
have to some extent addressed that problem, by ensuring that an unregistered
easement that is not known to, or readily discoverable by, a purchaser and has
not been used in the last year will not override a registered disposition; but a
purchaser may still be caught unawares, and easements that had overriding
status before 2003 will always retain that status.
3.78 So there are competing views about the value of a system of prescriptive
acquisition. It is important to note that abolition would not disturb already vested
rights acquired by prescription. And it is not clear that modern conveyancing
practice is as careless about the express creation of easements, whether by
grant or reservation, as may have been the case in the past.
3.79 However, consultees strongly favoured the retention of prescription. We asked in
the Consultation Paper whether the current law of prescription should be
abolished without replacement, and most consultees said no. 72 They believed
that it still serves a useful purpose. We also note that abolition may lead to
unforeseen problems; a number of jurisdictions that have abolished both
prescription and implication have had to introduce new statutory methods for
providing important easements that have been inadvertently omitted from land
transfers. 73
3.80 So we do not recommend the abolition of prescription.
3.81 We asked in the Consultation Paper if prescription might be abolished for
negative easements only, on the basis that such easements are in any event an
anomaly in the law, and that prescription for such rights (particularly light) gives
rise to disproportionate practical problems. 74 The views of consultees varied
widely on that question, but again there was no consensus in favour of abolition.
Caution was urged particularly about rights to light, which of course are a very
important factor in the context of urban development. 75 We do not therefore
recommend the abolition of prescription for negative easements.
71 Clearly there is a related problem here: the difficulty of establishing that an easement has
been extinguished by abandonment, which we discuss below at para 3.212 and following
below.
72 Consultation Paper, paras 4.174 and 4.193(1). We address these two questions together
in the Analysis of Responses at paras 4.95 to 4.109.
73 See F Burns, “Easements and Servitudes Created by Implied Grant, Implied Reservation
or Prescription and Title-by-Registration Systems” in M Dixon (ed), Modern Studies in
Property Law: Volume 5 (2009) ch 3.
74 Consultation Paper, para 4.193(2); see the Analysis of Responses, paras 4.110 to 4.118.
75 See the Analysis of Responses, para 4.115.
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