Definition of user: the exercise of a right to the enjoyment of property
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| Requirements for prescription
The long enjoyment must be: As of right; Continuous; and In fee simple User as of right This requirement means that the enjoyment must not have been by force (nec vi), in secret (nec clam) or by permission (nec precario). Nec vi: user by force includes not only physical violence (for example, where the claimant breaks open a locked gate or pulls down a fence), but also where the claimant continues his user despite the servient owner continual protests, for in neither case can the enjoyment be said to have been acquiescence by the servient owner. Nec clam: where the user was secret- that is, without the knowledge of the servient owner- there can be no prescription. Nec precario: User that has been enjoyed with the permission of the servient owner cannot become an easement by prescription, for the fact that permission was granted shows that the servient owner cannot have acquiesced in the claimant’s exercising the easement as a matter of right, since a permission can be withdraw, at any time. User at permission can be at most, a licence. Continuous User This requirement does not necessarily demand that the user be non-stop or on a 24-hour basis; rather the degree of continuity needed depends on the type of easement claimed (Hollins v Verney). For instance, an easement to receive support from a building must necessarily be enjoyed ‘round the clock’, where an easement to support an uninterrupted flow of light must be enjoyed during the day hours. An easement of way on the other hand will be regarded as sufficiently continuous even where it is used only intermittently, for by virtue of its nature, it will be used from time to time. Whether the user of way is sufficiently continuous is a matter of degree. It may also be noted that the user need not have been by the same person throughout the whole period. It is sufficient that the user is by successive owners of occupier of the dominant tenement; nor is there a need that user be by owner or occupier personally. It is sufficient if member of his family or regular employees enjoy the user. Download 50.55 Kb. Share with your friends:
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