7 - interests in land, Lecture notes of Law

Download 7 - interests in land and more Lecture notes Law in PDF only on Docsity! - the use must have existed since time immemorial i.e. since 1189 (date of legal memory established by the Statute of Westminster I 1275 c.39) although it is usually sufficient to prove that it has existed since living memory. Diment v Foot (1974), Kilgour v Gaddes [1904] 1 KB 457, Mills v Silver(1991) b) Lost Modern Grant - a fiction. It is presumed to have been made in modern times but the grant has been lost. Generally a period of 20 years will be sufficient to show the existence of the right. Bridle v Ruby [1988] 3 WLR 191; Mills v Silver [1991] Ch 271. c) Prescription Act 1832 - The Act alters the rules of common law and lost modern grant as follows: 1. If it can be shown that an easement has been enjoyed for 20 years (30 years if it is a profit) this will avoid the need for the claimant to prove at common law that the easement existed since 1189. However it will still be necessary to prove: i) continuous user; ii) use as of right. S.2 In calculating the period of 20 years a time during which the servient owner was: - an infant; - a patient under the Mental Health Act 1983 or earlier legislation; - a tenant for life; must be deducted. S.7 2. If it can be shown that an easement has been enjoyed for 40 years (60 years if it is a profit)then this will give the claimant an absolute and indefeasible right by virtue of the act and without reference to the common law or lost modern grant. However it will still be necessary to prove: i) continuous user; ii) use as of right - written or oral consent during the 40/60 year period will defeat the claim and written consent before the period will also defeat the claim although oral will not. S.2