1. While it is true that ‘actions speak louder than words,’ in the world of prescriptive easements it is often the inaction that speaks volumes. This article focuses on the curious case of prescriptive easements, and the circumstances required for their valid creation and recognition at law.

What are easements?

2. Before we delve into prescriptive easements, we must consider what an easement is. Broadly speaking, an easement is a property right granted to the owner of one property (“the dominant tenement”) over another person’s property (“the servient tenement”). Unlike ownership of land (which confers control), exclusive possession and the like, an easement is a limited right, often to do something specific like accessing a shared driveway, installing utility lines, or using a private walkway to reach a public beach. The critical feature of an easement is that it “runs with the land”. This means the right benefits and burdens the future owners of both properties.

Types of easements

3. An easement can be created in multiple ways including:

• Express Grant: Formally agreed upon and documented.

• Implied Easements: Arising from circumstances, like the division of land where access is necessary.

• Easements of Necessity: Typically granted when a property would otherwise be inaccessible.

• Easements by Reservation: Created when a seller retains rights over the land they sell.

4. While these easements are relevant, it is the prescriptive easement that is both fascinating and concerning for property owners.

The Curious Case of the Prescriptive Easement:

5. A prescriptive easement arises when someone uses another’s land openly, continuously, and without permission for a specified period (20 years under Jamaica’s Prescription Act). Over time, what starts as unauthorised use can ripen into a legally enforceable right.

6. This means that a neighbour parking delivery trucks in your driveway, a nearby business using your private driveway for customer access, or an individual maintaining a footpath across your land, could all potentially claim a prescriptive easement if left unchecked for a long enough period

7. Prescriptive easements may be created under:

a) Common law: This requires proof of the right being in existence from “time immemorial” (legally recognised to be the year 1189). Given the difficulty (if not impossibility) in obtaining such proof, the court presumes that this standard is met where there is evidence of uninterrupted usage of the right for at least 20 years.

b) Doctrine of lost modern grant: Here, the court presumes that a formally recognised grant was made but that the deed has since been lost. This legal fiction allows a claimant to bypass the rigid common law rules, even if the grant never existed.

c) Prescription Act: Perhaps the most efficient and straightforward method to acquire an easement by prescription. Section 2 of the Act provides that if someone has openly and continuously enjoyed a benefit, such as an easement over another person’s property for 20 years without interruption, they may acquire a permanent and undeniable right to it. This right becomes legally enforceable unless it can be shown that the use was based on a written agreement or consent. Courts look at the facts to determine whether the use was genuinely adverse and sufficiently long-standing.

ACQUIESCENCE

8. All forms of prescription require the user of land to be as of right. This means it must be without force, without secrecy, and without permission. What prescription requires is the acquiescence of the servient owner. The learned authors of Modern Law of Real Property observe that:

If the servient owner has allowed somebody to exercise an easement over his land for a considerable period and if he has omitted to prevent such exercise when he might have very well done so, it is only reasonable to conclude that the privilege has been rightfully enjoyed, for otherwise some attempt to interfere with it would long ago have been made by any owner who possessed even a modicum of common sense.

Why Should You Care?

9. Imagine purchasing a prime piece of land with the intent to build, only to discover that an unmarked access path or driveway has become a permanent easement due to prolonged, unchallenged use. Prescriptive easements can be a hidden threat to property rights and commercial plans. These situations can lower property value, cause operational disruptions and delays, cause loss of business opportunities, create legal costs, and result in unforeseen liabilities and obligations.

10. To avoid falling victim, you should regularly monitor your property and object to unauthorized use; post signs and barriers; act quickly and keep a record of your actions; give permission, if desirable (this disrupts the adverse requirement); and be sure to seek legal advice.

Conclusion

11. The story of prescriptive easements is a cautionary tale: Ignore intrusions long enough and they might evolve into permanent privileges. These situations remind us that in property law, silence often equals consent, and your inaction can be as significant as your action. Your property rights are yours to defend, and the consequences of overlooking these issues can be far-reaching.

Joshua Page is a graduate of Norman Manley Law School who hopes to be called to the Bar. This article was reviewed and approved by Alexis Robinson, a partner in the Litigation Department at Myers, Fletcher & Gordon. She may be contacted at alexis.robinson@mfg.com.jm or through the firm’s website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.