The Prescription Act of 1832 - Case Study Example

The Prescription Act of 1832 Introduction: Irish land law derives from the feudal system imposed by the Crown, whereby vast tracts of land were confiscated by the crown in the 17th and 18th centuries and further subdivision of land was disallowed. This later developed into a concept of “freehold” ownership, where the owner of the free tenure has the right to dispose of the land as he wishes, without being subject to the rule against inalienability1, and any attempt to restrain the owner from alienating his land will be deemed to be null and void. Leasehold tenures were a further development, either for a periodic tenancy or a confusion of freehold and leasehold concepts that constituted the fee farm grants for conversion of an original leasehold tenure into ownership of land. This was facilitated through statutory provisions such as the Renewable Leasehold Conversion Act of 1849, whereby leases for life or leases automatically renewable for ever were automatically converted into free farm grants.2 According to Section 74 of the Act, those cases where the power to convert pre 1849 leases had not yet been exercised, the statutory equivalent to the fee farm grants was allowed on a similar basis, the word similar being used because the lessee does not obtain the grant itself but equivalent terms.3 However this provision was revised in the Deasy’s Act of 1860 whereby the notion of tenure was abolished as well as the notion that the landlord should hold the right to a reversion in the land4, determining that the rights between the user/tenant of a property and the landlord was to be conditioned by a contract between the parties. This reverted the position of power to the Landlords, however these powers have been changed and the balance altered in favor of the tenants in recent times through the development of the Landlord and Tenant (Ireland) Act of 1870 and the Land Law (Ireland) Act of 1881, which gave more rights, such as the right to be charged a fair rent, have fixity of tenure and make free sales of the tenure.5 The Prescription Act of 1832: The development of the Prescription Act in 1832 was the result of the long standing conflicts between the rights of the freehold title owners of the land as opposed to the rights of those who had possessed and made use of the land for a long time. The feudal system of land ownership had resulted in disputes arising out of ownership of public lands or lands which several people used and had been using for a long time. In a situation where absentee landlords did not maintain or supervise their lands for long periods and did not assert their rights over the lands, members of the public and the tenants who made use of the property for a long time were deemed to have rights of ownership by prescription, or long term usage. The principle behind prescription was to deter interference with the long term enjoyment of a property. The concept of prescription was laid out in ancient Roman law as the “usucapio” which literally means a taking of ownership by virtue of its long term use. In order to be deemed a valid usucapio, the factors that were taken into consideration included the nature of the property and the conditions under which the user had obtained possession of it. If the acquirer had taken possession of the land in good faith and had enjoyed long term use, he was deemed to have the right to unfettered enjoyment of the property. This was also the principle behind the Prescription Act, which was a response to the feudal system that assigned all the rights to the freehold owners, to the detriment of the people who were using the land and had been using and maintaining it for a long time. English Law did not allow for a direct ownership on grounds of prescription, therefore immemorial custom was deemed to be one of the factors to be taken into consideration in allowing prescription rights. The assumption was that the passage of a long period of time, i,e, 20 years, was deemed to bar the original owner from seeking remedy for recovery of the land on the presumption that he had undertaken some act that endowed the user of the property with the right to title and enjoyment of the property, especially as far as rights of way and use of other easements was concerned. In particular, the English case of Bryant v Foot6 established a limitation period of 20 years of use, which in itself constituted sufficient grounds to establish a prescriptive right over the property in question. Moreover, the characteristics of a valid user of the land were qualified by the Latin phrase nec vi, nec clam, nec precario which literally means: not by force, nor by stealth nor the licence of the owner.7 The bottom line guiding the exercise of the principle of prescription was deemed to be founded upon acquiescence, as laid out by Fry J in Dalton v Angus: “…. the whole law of prescription and the whole law which governs the presumption or inference of a grant or covenant rest upon acquiescence. The Courts and the Judges have had recourse to various expedients for quieting the possession of persons in the exercise of rights which have not been resisted by the persons against whom they are exercised, but in all cases it appears to me that acquiescence and nothing else is the principle upon which these expedients rest.”8 The importance of the Prescription Act: Section 2 of the Prescription Act specifically calls for an upholding of the lawful rights of possession of the user to whom valid possession was granted by prescription and was geared towards preventing the interruption of that right to free enjoyment. This was further clarified in Section 5 of the Act which further refined the quality of enjoyment with all pleadings by the user being a matter “as of right” so that the prescriptive right over the property should have been enjoyed “openly and in the manner that a person rightfully entitled would have used it…”9 Initially, the Law of Prescription was applied to private rights of way through a property, later it also expanded to include public rights on use on the assumption that the rightful owner acquiesced with such use. In the period when the Act was passed it was an important assertion of the rights of the public and was significant in the feudal era that existed. It constituted a reform in land ownership and use which was in step with the changing order from agriculture to an era of industrialization. The Prescription Act was important in establishing rights of way for the public to the use of land previously bonded under a feudal system of agricultural ownership. Therefore, certain properties and lands such as easements were deemed to have been transferred into public possession by virtue of continuous enjoyment by the public over a time span of 20 years. However, in practice, there has been a great deal of confusion associated with the actual implementation of the Act, since rights of ownership are spread out among a variety of users and the actual ownership of easements and public properties becomes difficult to determine, with the possibility of every 20 years ringing in claims of ownership. Moreover, the concept of “as of right” as specified in the Prescription Act mandates that a person who does not have a legal right can acquire one over a stipulated period of possession, if the three conditions of not by stealth, force and on license are satisfied. In order to impute license, the silence of the owner is deemed to be acquiescence, which raises legal complexities in execution since the rights of the original freeholder are compromised. But it was significant when it was passed because it represented the changes from the feudal system, where every person was bound by fealty to the Crown. Ownership of the land passed into the hands of the Crown if a freehold owner died without leaving a successor. Therefore, under the feudal system, the ultimate owner of all land was the crown and no other body or person was entitled to “alloidal” or absolute ownership.11 The Prescription Law however, was a significant reform in the law that allowed members of the public to exercise ownership in terms of unfettered use and enjoyment of the land, merely by virtue of having continuously possessed and used it for twenty years. The lack of relevance of the Act in the present time: The most significant factor that had rendered the Prescription Act unnecessary is the Constitution of Ireland, first developed in 1922 and amended in 193712. The relationship between the State and its citizens under the Irish Constitution is not akin to the feudal landholding system that demanded fealty to the owner of the land. However the Constitution is based upon principles of democracy where the rights of the citizens are accorded top priority rather than the rights of the ultimate landowner, i.e, the Crown. In a democracy, all land is alloidal and is held by the citizens as absolute owners and not from the State through a system of tenure. Therefore, the State cannot seize land on the basis that it is the owner through tenure, since Article 43 of the Constitution guarantees the right of private ownership13; on the contrary, it needs to invoke statutory provisions of the law. Another significant reason that makes the principles of Prescription inapplicable in present times is the fact that it does not adequately allow for the rights of the rightful owners. For example, in the case of R v Sunderland City Council14 on the public rights to use the property that had functioned as the village green for several years, was held by the Court: “A landowner may so conduct himself as to make clear, even in the absence of any express statement, notice or record, that the inhabitants use of the land is pursuant to his permission”. But this raises the problem of assent imputed by silence, which may not always be relevant from the point of view of upholding rights of owners, who are alloidal owners of property with individual rights under the Constitution. It cannot form the basis for rights of ownership of other parties. In Davies v DuParver15, Morris J said that a claim under prescription would have to demonstrate that “the owner of the servient tenement had knowledge of what was happening or…..reasonable opportunity of knowledge” and that with the knowledge, did not intervene. In the case of Mills v Silver, Dillon J clarified that “mere acquiescence in or tolerance of the user by the servient owner cannot prevent the user being as of right for purposes of prescription.”16 Therefore the Prescription Act is seriously in conflict with private rights as they exist today when the feudal system is no longer in existence. The problems associated with the Prescription Act were highlighted in the case of Beresford17 where local residents pressure for the designation of what was deemed to be council property as a village green, to which the members of the public had rights. This application of the Prescription Act causes problems in the area of property designated as State property because such property may also be deemed to be shared with the public under alloidal property agreements. In this case, the Court prevented the public body – the Sutherland City council from using its land for building a college of further education. In the interest of preserving the environment and preventing construction on land that had been used by the public for right of way, the citizens filed this suit. However, application of the Prescription Act in today’s day and age can be seen to present problems of conflicts with the State and citizens in matters such as environmental issues. The Prescription Act was valid at a time when a shift was being made from an agricultural economy to an industrialized economy, wherein the interests of members of the public could be held to be paramount in recognizing their rights to ownership and use of land. However, it is the reverse case which is now true. Too much industrialization has now resulted in legislation that has been passed to protect the environment and there could be instances where the State ownership of land may be justified in order to prevent its exploitation for purposes of monetary gains. Unless certain lands as designated as protected areas, it is likely that the tide of industrialization will also encompass those lands. Moreover, other legislation has also been passed that is geared towards the resolution of disputes among owners of land in terms of rights of public and private way, easements and appurtenances. Amendments to the Land law Act, requirements of registration of land and modifications to the Landlord and tenant Acts have all included provisions for resolution of disputes arising out of lands/easements where public rights clash with private rights. Land registry has negated much of the need for re-assertion of the rights of users of property, since these requirements clearly set out the rights and obligations of both the users of property and the rightful owners of the property. There are also provisions to allow for legal acquisition of ownership of property through the law of adverse possession, which in effect displaces the Prescription Act, since the provisions in both cases are the same. The Law of Adverse Possession provides for a tenant or user of land who has acquired it through a rightful license and continues to hold possession of it as if he is the rightful owner, to retain his possession of it if the owner has been negligent in terms of maintenance or upkeep.18 The Land registration Act of 2002 also provides the facility for squatters to claim title to land that they may have acquired adversely.19 Therefore, when modern statutory provisions such as these exist in the law, the Prescription Act of 1932 which is primarily focused upon rights of public and private way in the matter of easements and appurtenances appears to be redundant. The Prescription Act is also difficult to administer due to the complexities inherent in properly ascribing ownership when there are multiple users, all of whom may have rightful rights to ownership and possession of land as prescribed under the Act. Through the laws of succession, their descendents and heirs will also have similar rights to unfettered enjoyment of the property in question. Since one owner may have several heirs this causes fragmentation of rights and it becomes extremely difficult to determine equitable interests of all the owners of the land. Moreover, the Law of Prescription relating to the acquisition of easements and the ascribing of profits by prescription is extremely complex and confusing, since it becomes difficult to actually divide physical property and fragment it among the various heirs. The concept of trusts is also not well developed in Ireland and many of the equitable provisions that have been introduced in England are not applicable on immovable property in Ireland. Nevertheless, through the existence of trusts, disposition of private property has become much easier and less complicated and it is possible for several owners to represent their interests by way of equitable interests in a property. The Prescription Act however, does not contain such provisions which makes it a complicated and difficult law to administer. Conclusion: On the basis of the above, it may be concluded that on the whole, the Prescription Act is a cumbersome Act in the changing land environment. There have been several changes in the conveyancing of land which also include disposition of equitable interests through trusts and the operation of the Prescription Act appears old fashioned and irrelevant, apart from being needlessly complicated and difficult to administer. Bibliography * Kelly, 2003. The Irish Constitution (4th edn by Hogan and Whyte) Lexis Nexis Butterworths. * Lyall, Andrew, 2000. Land Law in Ireland (2nd edition) Round Hall, Sweet and Maxwell * Bright v Walker (1834) 1 Cr M & R 211 at 219. * Bryant v Foot (1867) LR 2QB 161 at 181 * Dalton v Angus (1881) 6 App Cas 740 at 773 * Davies v DuParver (1953) 1 QB 184 * Mills v Colchester Corporation (1867) LR 2 CP 476 at 486 * R (Beresford) v Sunderland City Council [2003] UKHL 60 * Re Dunne’s Estate (1988) IR 55 * Wallis v Shell-Mex [1975] QB Read More