Whether use by force
“The user which will support a prescriptive claim must be user nec vi, nec clam, nec precario (without force, without secrecy, without permission)… Forcible user (vi) extends not only to user by violence… but also to user which is contentious or allowed only under protest.”
Megarry and Wade The Law of Real Property (6th ed) para 18-123.
Until recently, authority for the last proposition quoted above has been rather thin. But no longer: see Smith v Brudenell-Bruce [2001] EWHC Admin 504; [2001] 28 EG 143 (CS).
Whether use by permission
The elusive boundary between permission, which will negative a prescriptive claim, and acquiescence, which will not, has been explored by the Court of Appeal in the commons registration case of R (on the application of Beresford) v Sunderland City Council [2001] EWCA Civ 1218; [2001] 32 EG 86 (CS). The case brings some hope to servient owners who are unable to establish an express grant, oral or written, of permission. They will not be taken to have acquiesced if they can point to other conduct on their part (or their predecessors) from which a grant of permission can reasonably be inferred.
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Whether use by force
“The user which will support a prescriptive claim must be user nec vi, nec clam, nec precario (without force, without secrecy, without permission)… Forcible user (vi) extends not only to user by violence… but also to user which is contentious or allowed only under protest.”
Megarry and Wade The Law of Real Property (6th ed) para 18-123.
Until recently, authority for the last proposition quoted above has been rather thin. But no longer: see Smith v Brudenell-Bruce [2001] EWHC Admin 504; [2001] 28 EG 143 (CS).
Whether use by permission
The elusive boundary between permission, which will negative a prescriptive claim, and acquiescence, which will not, has been explored by the Court of Appeal in the commons registration case of R (on the application of Beresford) v Sunderland City Council [2001] EWCA Civ 1218; [2001] 32 EG 86 (CS). The case brings some hope to servient owners who are unable to establish an express grant, oral or written, of permission. They will not be taken to have acquiesced if they can point to other conduct on their part (or their predecessors) from which a grant of permission can reasonably be inferred.
