Chapter 19 Self-test Questions

. John has just purchased Blackacre. He now discovers that the owners of Whiteacre have for some years now been crossing Blackacre about once a fortnight to get to and from the village. John is worried about a possible prescriptive easement. What is his best course of action?

Do nothing and don't worry: once a fortnight is not sufficiently continuous to be a prescriptive user.

Write to the owners of Whiteacre saying 'In future, your crossing of Blackacre is with my (revocable) permission'.

Use violence to stop the owners of Whiteacre crossing Blackacre.

Write at once to the owners of Whiteacre, protesting about their conduct, and immediately commence proceedings against them seeking an injunction.

. Kent owns West House. Lars owns East House and adjoining Smallacre Field. Every morning for the last 20 years, Kent has cut across Smallacre to get to the station. He gains access to Smallacre through gaps in the hedge which have existed since at least 1950. Lars often sees Kent in the field, and complains loudly over his breakfast to his wife and children. They tell him to protest to Kent, but Lars then just shrugs his shoulders. He has never spoken to Kent. Has Kent's use been 'as of right'?

Yes.

No, Lars' silent acquiescence amounts to permission.

No, passing through the gates in the hedge is forceable use.

No, use in the face of Lars' complaints is 'forceable use'.

. Ignoring the special exceptions in the Prescription Act 1832, which of the following propositions is correct?

A tenant can never prescribe for an easement against his own landlord.

A tenant can never prescribe for an easement, whatever the circumstances.

There can never be prescription where, during the period of use as of right, the servient land was (at times) leased.

There can never be prescription where, during the period of use as of right, the land comes into the hands of a life tenant.

. Ian has recently purchased Greyacre. He now discovers that the owners of nearby Northacre have crossed Greyacre every Sunday to get to and from the village church. The church was built in 1150. The owners of Northacre are now claiming a common law prescriptive easement. How might Ian rebut this claim?

By providing old records which suggest that the owners of Greyacre possibly took a different route to church prior to 1400.

By producing old records that prove that, up to 1250, Greyacre and Northacre had a common owner: Baron Blogtown.

Simply by saying 'you cannot prove user as of right stretching back to 1189'.

By producing old records which suggest that the church may have been closed for a period during the reformation (circa 1530).

. The claim to a prescriptive easement by lost modern grant failed in Oakley v Boston. Why?

User as of right ceased in 1962, but court proceedings were not commenced until 1972; the use was not 'next before action'.

The user as of right was against the vicar who owned the land in his personal capacity, and he was therefore incapable of granting an easement.

The use as of right was against the vicar who owned the land in his official capacity, and he was therefore incapable of granting an easement.

The period of user as of right was against the Church of England, which has no power to grant easements over its land.

. For the last 19 years and 3 months, the owners of Highacre have been crossing Lowacre 'as of right' to get to and from Highacre. Esther has just bought Lowacre; she immediately wrote to Francine, the current owner of Highacre, demanding that Francine keeps out of Lowacre. Yesterday, Francine wrote to Esther, saying 'I will temporarily keep out of Lowacre while I consult a solicitor, but I think I have a private right of way'.
What is the best course of action for Esther?

Do nothing, as there is less than 20 years' use as of right.

Wait until 20 years have elapsed since the commencement of use as of right, and then issue a claim form claiming an injunction against Francine.

Issue a claim form now, or within the next eight months.

Concede that Francine already has an easement.

. It is June 2016. In January 1975, the then owners of Southlands commenced crossing Northlands to get to and from Southlands. The use as of right has continued ever since. Northlands was subject to a 50-year lease which ran from July 1960 to July 2010.
Reshawar has just bought Northlands, and he has written to Quereshi, the current owner of Southlands, stating bluntly: 'Get off my land; if you continue to trespass I will see my solicitor'. What is the best advice to give to Quereshi?

Carry on regardless; he already has an easement through 20+ years' use as of right.

Issue a claim form now, claiming a declaration that he has an easement under s.2 of the Prescription Act 1832.

Stop using the route temporarily and issue a claim form in February 2017.

Stop using the route for two or three years, and then issue a claim form.

. High Tower was built fifteen years ago on land which was previously empty. High Tower overlooks Large Space, an open piece of land which Jean has just purchased. Jean is worried that High Tower might acquire an easement of light. What is his best course of action?

Do nothing and don't worry. Easements of light are rare nowadays.

Put up hoardings, blocking out the light to High Tower.

Put up an imaginary building, using the procedure provided by the Rights of Light Act 1959.

Put up a large notice on Large Space, saying 'no easement of light can be acquired over this land'.

. Purpleacre is unregistered title. For the last 25 years, the owners of Orangeacre have crossed Purpleacre as of right to get to and from Orangeacre. In the last three years, the 'right' has been exercised only infrequently. Frank has just bought Purpleacre. He has just had an argument with George, the current owner of Orangeacre, whom he met on one of George's (now rare) walks across Purpleacre. Frank complains to you: 'I knew nothing of this right of way: there was no worn path; there was no mention of it in the Land Charges Register I searched'.
What is the correct advice to give to Frank?

The prescriptive easement is a legal easement and is therefore binding on Frank.

The prescriptive easement is an overriding interest within Schedule 3 para 3, LRA 2002.

The prescriptive easement is an equitable interest still subject to the doctrine of notice. Frank (luckily) was without notice.

The prescriptive easement is an equitable interest registrable as a land charge.

. For the past 25 years, the owners of Deepacre have crossed Shallowacre 'as of right' to get to and from Deepacre. The easement is exercised (on average) once a day. Percy has just bought Shallowacre. Shallowacre has been registered title since 1900, but there is no mention of the easement on the register.
What is the correct advice for Percy?

The easement is binding as an overriding interest.

The easement is a minor interest which should have been protected by the entry of a notice.

The easement should have been substantively registered under LRA 2002: s.27(2)(d).

A prescriptive easement is an equitable interest, and therefore cannot be overriding within LRA 2002 Schedule 3 para 3.

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