Land Registration Act 2002 - Essay Example

Land Law In the year 2001, Oscar and Parminder purchased a cottage each from a factory, which had leased these to its employees from the year 1930. The approach to the cottage purchased by Parminder was through the back garden of the cottage purchased by Oscar. Subsequently, Oscar blocked the pathway leading to Parminder’s back garden. This paved path had been previously used by the tenants of the factory, since 1930. It is to be determined whether Parminder can regain her rights and prevent Oscar from blocking access to her back garden. For advising Parminder in respect of her rights of access to the back garden, the issues to be addressed are; Whether No. 3 Harrison St, which was purchased by Parminder, has acquired any prescriptive right of easement over the land owned by Oscar. Whether Parminder can make a claim against Oscar for a free access to her back gardens, under the provisions of the law. The principle of adverse possession comes into play, when an individual other than the original owner of the property acquires ownership rights or use of that property. This is termed as easement by prescription, and is quite frequent on rural lands, where a landowner may fail to realise the surreptitious use of his land. The incorrect location of fences, results in prescriptive easements, if left unchecked.1 The title obtained from enjoyment or use, as stipulated by the law, had been defined as prescription. An easement by prescription was a proprietary interest in the servient land that would have a binding effect on the successors in title to such land. Prescription recognised that on occasion, individuals had to access land belonging to others. Moreover, the law should be flexible, and frequently, over a protracted period the formal process of acquiring rights had to be circumvented.2 Easements arise through three methods; first, prescription at common law. This is based on the assumption that the use had commenced prior to the year 1189, and was for a continuous period of 20 years. The second is that of lost modern grant, which requires 20 years of continuous use to establish an easement by prescription. This is not affected by any evidence, from the servient owner that no grant had been provided. Finally, under the Prescription Act 1832, uninterrupted use for 20 years, establishes a prescriptive right.3 The common law prescription presents several difficulties. In order to rectify this situation, the doctrine of lost modern grant was introduced by the courts. This principle permits a claimant to obtain a prescriptive easement, if he had enjoyed continuous use for 20 years. In Dalton v Angus,4 their Lordships upheld this principle.5 In addition, the Land Registration Act 2002 has sustained the overriding status of prescriptive easements. Although, these interests do not find a place on the land register, they are enforceable against a land owner.6 In our present problem, there is no mention of access rights regarding the backyard gardens of No.1 and No. 3 Harrison Street. However, the back garden of No. 3 had to be accessed through the paved pathway in No. 1. The following case law reveals the attitude of courts in dealing with the prescriptive easement rights under various circumstances. Palk v Shinner dealt with a fee simple easement. It had been the practice for some 30 odd years, for the plaintiff’s tenants to cross the defendant’s land, in order to access the land leased to them by the plaintiff7. On their being prevented from doing so by the defendant, the plaintiff approached the court which held that his tenants could be deemed to be acting on his behalf. Thus, the plaintiff was provided with a fee simple easement8. In London Tara Hotel Limited v Kensington Close Hotel Limited, a dispute arose regarding the use of the private service road that wound round the Tara Hotel. This was termed the Tara Ring Road (TRR) and the defendant had contended that it was entitled to use the TRR, by prescription or by lost modern grant.9 The Prescription Act requires the defendant’s use to be for at least 20 years, prior to initiating the action.10 However, the lost modern grant does not mandate a minimum of 20 years, for bringing an action. It was held that the defendant was entitled to a right of way over the TRR, due to a lost modern grant.11 In Dewan and others v Lewis, the respondent Lewis attempted to drive his herd through a residential area. His contention was that he could do so as he already had a right of way over this track. The respondent had not driven his stock over this track, during the relevant 20 year period. The Court of Appeal held that the degree to which a right had been acquired by a user had to be balanced with the extent to which this right was being used.12 Hence, the respondent was not permitted to drive his cattle through the residential area. In Wheeldon v Burrows the Court of Appeal ruled that on the sale of a piece of land, all continuous and apparent easements pass on to the grantee. The continuous use of land provides the user with an easement.13 In Odey v Barber, it was held that use of a pathway with the permission of the servient landowner, prevents a prescriptive easement being acquired by the user.14 In Housden and another v Conservators of Wimbledon and Putney Commons, 15 the Court of Appeal ruled that a right by prescription, under section 2 could not be derived if the servient owner, himself was disallowed from granting an easement by statute.16 As per the following discussion and case - laws, it can be concluded that Parminder can make a claim against Oscar for blocking the way to her garden. This is because, initially, No.1 and 3 Harrison Street were owned by the factory and had been leased out to tenants till they were purchased by Parminder and Oscar. As per the provisions of Prescription Act, No. 3 Harrison Street had acquired prescriptive easement, over the path used for accessing its backyard garden, since the same had been used for more than 20 years for that purpose. Hence, Parminder can make a claim against Oscar to reinstate her rights of access to her backyard garden. Bibliography Burns F, ‘The Future of Prescriptive Easements in Australia and England’ (2007) 31(1) Melbourne University Law Review ‘Case Abstracts’ (LexisWeb, 2011) accessed 24 June 2011 Dalton v Angus [1861] 6 App Cas 740 Dean & Others v Lewis [2010] EWCA Civ 1382 Dixon M, Modern Land Law (7th, Taylor & Francis 2011) England and Wales High Court (Chancery Division) Decisions’ (BAILII) accessed 24 June 2011 Housden and another v Conservators of Wimbledon and Putney Commons [2007] EWHC 1171 Land Registration Act 2002 London Tara Hotel Limited v Kensington Close Hotel Limited [2010] EWHC 2749 Odey v Barber [2008] 2 WLR 618 Palk v Shinner [1852] 118 ER 215 Prescription Act 1832 ‘Prescriptive Easements’ < http://realestate.findlaw.com/easements/prescriptive-easements.html> accessed 24 June 2011 Sexton R, Land Law Textbook (2nd edn, OUP 2006) Wheeldon v Burrows [1879] All ER 669 Read More