Definition of user: the exercise of a right to the enjoyment of property
Limitations on the application of the provisions
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- There must be a ‘conveyance’ of land
- Acquisition by presumed grant (Prescription)
- Basis of prescription
| Limitations on the application of the provisions
The question is solely whether a licence or privilege was in fact enjoyed by the purchaser. Rights that cannot ripen into easement: A right to protection from whether (Phibbs v Pears). Right of privacy Any right on which there is a restriction- thus, the right granted must be an absolute one. The right to store coal was analogously translated into the right to park a car on the forecourt of an apartment was recognized as an easement under s 9 (Newman v Jones). NB. Section 9 will not operate unless there had been some diversity of ownership or occupation of the dominant and servient tenements prior to the conveyance. There must be a ‘conveyance’ of land Not included in conveyance are purely oral tenancies nor agreements to lease (Re Ray). This is another respect in which an agreement to lease within Walsh v Lonsdale, principle is less effective than a legal lease. Section 9 may be excluded by express exception in the conveyance. Acquisition by presumed grant (Prescription) Under this method of acquisition, the law presumes that a person who has, in fact enjoyed the right for a considerable period of time was, at some point in the past, granted an easement by deed. This concept of acquisition by long enjoyment is called prescription. The doctrine of presumed grant is of course, a legal fiction, designed on one hand, to uphold a right that has continuously been enjoyed and, on the other, to pay lip service to the principle that every easement must originate in a grant. Basis of prescription The doctrine of prescription is based on acquiescence by the servient owner in allowing somebody to exercise what amount to an easement over his land for a long time without doing anything to stop him. Fry J, in Dalton v Angus, explained the nature of prescriptive acquisition thus: In my opinion, the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence... it then becomes of the highest importance to consider what ingredients acquiescence consists. I cannot imagine any case of acquiescence in which there is not shown to be in the servient owner: (i) knowledge of acts done; (ii) a power in him to stop the acts or to sue in respect of them; and (iii) an abstinence on his part from exercising of such powers. Download 50.55 Kb. Share with your friends:
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