Prescription Act 1832 (Imp)

Profit à prendre (section 1): A right to enter another’s land and take something from it - for example, grazing, fishing, or minerals. The Act covers profits taken from Crown land, Duchy of Lancaster, Duchy of Cornwall, and any lay or ecclesiastical person or corporation. Tithes, rent and services are excluded. The two-tier periods apply: 30 years gives a right not defeatable merely by showing earlier commencement; 60 years makes the right absolute and indefeasible, subject to the consent-by-deed exception.

Easement (section 2): A right to use another’s land in a particular way without possessing it - such as a right of way, a right to water, or a right to a watercourse. Same two-tier periods (20 years and 40 years) and same consent exception. Section 8 adds a further complication: when computing the 40-year period, time during which the land was held under a lease for life or for a term exceeding three years is excluded, provided the claim is resisted within three years after the lease ends by the reversioner.

Interruption (section 4): An act that breaks the continuity of enjoyment. It counts as an interruption only if it was submitted to or acquiesced in for one year after the interrupted party had notice of the act and the person causing it. So a one-year gap in enjoyment can destroy the continuity and reset the period. The burden is on the person resisting the claim to show the interruption.

Next before some suit (section 4): The period of 30, 60, 20 or 40 years is computed backwards from the date of the proceeding in which the right is questioned. This prevents a claimant from relying on enjoyment that ended long ago if there has been a recent break. It also means the period can shift if litigation is started at different times.

Absolute and indefeasible (sections 1, 2): After the longer period (60 or 40 years) with no consent by deed, the right cannot be challenged at all. This is a strong form of prescription, akin to an acquired right equivalent to a grant. However, the exception for infant, idiot, non compos mentis, feme covert, or tenant for life (section 7) still applies: those periods of disability are excluded from the computation unless the right has already become absolute - meaning once the 60/40 year period has run, disabilities cannot revive the claim.

Consent or agreement by deed or writing (sections 1, 2): If the enjoyment was by express permission (not as of right), then even after 60 or 40 years the right is not absolute. The consent must be documented by deed or writing. A simple oral licence does not defeat the longer period, but it does prevent the user from being “as of right”, so the claim would fail anyway before reaching the statutory period.

The Act binds:

• Claimants of profits and easements: Any person (natural or corporate) who seeks to assert a prescriptive right over land owned by another. This includes private individuals, bodies corporate, and even the Crown (when claiming against its own land - section 1 specifically mentions the King’s land).
• Owners of servient tenements: The land burdened by the easement or profit. They must be aware that if they do not interrupt a continuous use, after the statutory period they may lose the right to object. The Act provides some protection through the interruption mechanism (one year’s acquiescence) and the consent exception, but inaction for the longer period (40 or 60 years) can permanently extinguish their right to resist.
• Life tenants, tenants for years, and reversioners: The Act explicitly includes (section 7) tenants for life among those whose disability excludes time. However, section 8 excludes the time during a leasehold term (above three years) from the 40-year period if the reversioner objects within three years of the lease ending. This prevents tenants from granting a de facto easement against the reversioner’s interest.
• Persons under disability: Infants, mentally incapacitated persons, and married women (feme covert - an archaic concept now inapplicable as married women have full capacity) cannot have time run against them while the disability continues, but only up to when the right becomes absolute (section 7).
• Crown and State: The Act expressly covers Crown land, Duchy land, and land of ecclesiastical persons. In Western Australia, this includes State-owned land and potentially Crown reserves, subject to other statutes such as the Land Administration Act 1997.
• Legal practitioners and title searchers: The Act has pleading requirements (section 5) that affect how claims and defences are framed. A plaintiff must allege enjoyment for the relevant period “as of right”. A defendant must specifically plead any defence such as consent, disability, or interruption.

The Act does not affect claims to tithes, rent, or services (excluded by section 1). It also does not apply to Scotland or Ireland (section 9). It applies in Western Australia by virtue of adoption in 1836.

Rights of the claimant:

• After 30 years (profit) or 20 years (easement) of uninterrupted actual enjoyment as of right, the claimant acquires a right that cannot be defeated merely by showing the commencement of that enjoyment. The burden shifts to the servient owner to prove interruption, consent, or disability.
• After 60 years (profit) or 40 years (easement) with no consent by deed, the right becomes absolute and indefeasible. The claimant can assert it against successors in title.

Duties of the servient owner:

• The duty is essentially negative: the owner must take active steps if they wish to prevent the acquisition of a prescriptive right. They must interrupt the enjoyment in a way that is clear and not acquiesced in for a year. An oral complaint is insufficient; they must physically obstruct or give written notice, and if the obstruction is not resisted for a year, it counts as an interruption.
• The owner must also be aware that if the user continues for 20/30 years, they risk losing the right to object. For longer periods, consent must be recorded by deed to prevent the right becoming absolute.

Obligations concerning pleadings (section 5):

• A claimant may plead generally that they enjoyed the right as of right for the relevant period, without alleging immemorial user.
• A defendant must specifically plead any exception: for example, that the user was by consent, or that an interruption occurred, or that the claimant was under a disability. They cannot rely on these matters under a general denial.

Time computation obligations:

• When computing the period, any time during which the person entitled to resist was an infant, idiot, non compos mentis, feme covert (archaic), or tenant for life must be excluded, unless the right has already become absolute under sections 1 or 2 (section 7).
• For the 40-year period for easements, time during which the land was subject to a lease for a term exceeding three years is excluded if the reversioner resists within three years after the lease ends (section 8). This imposes an obligation on reversioners to act promptly after expiry of a lease.

The Prescription Act 1832 does not create any criminal or civil penalties. There are no fines, infringement notices, or statutory damages under the Act itself. Enforcement occurs entirely through the ordinary civil court system, where a claimant asserts a prescriptive right and the court determines whether the conditions of the Act are met.

If the claimant succeeds, the court will make a declaration that the right exists and may grant an injunction to protect it. If the servient owner resists unsuccessfully, they may be ordered to pay costs, but that is under court rules, not the Act.

The only meaningful “penalty” in the Act is the loss of the right to object after the expiry of the longer periods (60/40 years) without appropriate action. The servient owner is effectively penalised for inaction: their failure to interrupt or document consent by deed results in the permanent burden on their land.

Similarly, a claimant who fails to meet the pleading rules (section 5) may have their claim struck out or be unable to adduce evidence of the statutory period, but again that is a procedural consequence, not a penalty under the Act.

Section 4’s interruption rule creates an incentive for the servient owner to take active steps: once they interrupt and the interruption is submitted to for a year, they can reset the clock. Conversely, the claimant must ensure that any physical obstruction or legal challenge is contested within a year, or they risk losing the continuity.

The Act also indirectly penalises informal consent: if a servient owner gives verbal permission for a use to continue for 40 years, they lose the right to call it consent by deed. However, the user is not “as of right” and thus cannot rely on the Act anyway. The real trap is that informal consent may still be evidence of a licence, and the claimant may have to rely on other doctrines (e.g. lost modern grant) to support the claim.

Common law prescription: The Act does not abolish the common law method of claiming prescription - it merely shortens the period. A claimant can still rely on immemorial user if they can prove it, but in practice the statutory periods are easier. Section 6 restricts the court from presuming a right from less than the statutory period under this Act, but the common law still allows other presumptions (e.g. lost modern grant) if the evidence supports it. However, in Western Australia, the common law concept of lost modern grant has been affected by Torrens system principles as to indefeasibility.

Light and Air Act 1902 (WA): Section 3 of the Prescription Act 1832 (which dealt with rights to light and air, i.e. ancient lights) was repealed in WA by the Light and Air Act 1902, s.5. Consequently, the Prescription Act now provides no special regime for light and air in WA. Claims to light must be based on common law, grant, or possibly the Light and Air Act itself, which has its own provisions.

Property Law Act 1969 (WA): This Act contains provisions on easements (e.g. s. 21 on creation of easements) and profits. The Prescription Act supplements those by providing a method of acquiring easements by long use. However, once an easement is acquired by prescription, it is subject to the same rules as any other easement under the Property Law Act, including the requirement for registration if it is to affect Torrens title land - but prescription typically gives an equitable or legal right enforceable without registration in some circumstances. The interaction with the Torrens system is complex: s. 68 of the Transfer of Land Act 1893 (WA) provides that no title to an easement or profit shall be acquired by prescription against the registered proprietor of land except in certain cases (see s. 68(2) for exceptions where the Crown is involved). The Prescription Act must be read subject to those provisions. The Torrens system generally prevents prescriptive acquisition against registered proprietors, but the Prescription Act may still apply to unregistered land or Crown land not under the Torrens system.

Imperial Acts Adopting Act 1836 (WA): The Prescription Act 1832 was adopted by this Act. It is therefore part of Western Australian statute law as at 11 April 1836. Any amendment or repeal of an Imperial Act after that date does not affect it in WA unless specifically adopted.

Limitation Act 1953 (NT) - not applicable: there is a risk of confusion with limitation periods for recovery of land; the Prescription Act deals with acquisition of rights, not barring of claims.

Native Title Act 1993 (Cth): The Prescription Act cannot operate to extinguish native title rights without compliance with the Racial Discrimination Act 1975 and the Native Title Act. The acquisition of a profit or easement over land that is subject to native title would be a future act requiring the usual procedures. The Prescription Act’s operation is subordinate to Commonwealth native title law.

Crown Land: The Act expressly covers Crown land, but the ability to acquire a prescriptive profit over Crown land may be limited by statutes such as the Land Administration Act 1997 (WA), which vests management in the Minister and may prevent adverse claims without specific consent.

The Prescription Act 1832 (Imp) is an imperial statute originally enacted by the Parliament of the United Kingdom (2 & 3 Will IV c. 71) and received royal assent on 1 August 1832. It commenced on the first day of Michaelmas term 1832 (section 10).

It was adopted into Western Australian law by the Imperial Acts Adopting Act 1836 (6 Will IV No. 4), which received assent on 11 April 1836. The adoption was by preamble and item 9 of that Act. The Act therefore applies in WA as at that date, subject to subsequent WA amendments.

The only amendment to the Prescription Act as it applies in WA is the repeal of section 3 by the Light and Air Act 1902 (1 & 2 Edw VII No. 29), s.5, assented to 19 February 1902. Section 3 related to rights to light and air and provided for 20-year and 40-year periods akin to easements. Its repeal means those provisions no longer form part of WA law.

The Act was reprinted as at 26 October 1999 and appears in the compilation table as “Reprinted as at 26 Oct 1999”. No further amendments have been made specifically to the Prescription Act in WA.

No amendment has been made to sections 1, 2, 4, 5, 6, 7, 8, 9, 10, or 11. The Act remains largely in its original form in WA. The unrepealed provisions are still operative, subject to the broader statutory framework mentioned above.

The compilation notes confirm that the short title “Prescription Act 1832” was given by the UK Short Titles Act 1896, and that the full citation in Halsbury’s Statutes (4th ed, vol 13, p 701) provides further context.

The Act can still be amended or repealed by the Western Australian Parliament under section 11 (which originally allowed amendment during the session of the Imperial Parliament, but now by force of adoption, WA may amend it as any other statute).

The source text provides no specific case law relating to the Prescription Act 1832 as applied in Western Australia. The compilation table and notes do not cite any litigation, decisions, or judicial interpretations. Consequently, this analysis cannot identify any Western Australian cases that have considered the Act, nor can it comment on how the courts have applied provisions such as the consent exception or the interruption rule.

That said, as a matter of general law, the Prescription Act has been subject to extensive litigation in England and in other Australian jurisdictions. Key issues that arise in that broader context include:

• what constitutes “as of right” (nec vi, nec clam, nec precario - without force, without secrecy, without permission);
• when an interruption is “submitted to or acquiesced in for one year” (section 4);
• the effect of the disability provisions (section 7) - particularly whether “tenant for life” includes a tenant under a settlement or a statutory life tenant;
• the interaction between the 40-year period and the lease exclusion (section 8) - whether a reversioner needs to actually physically resist or merely bring a legal action within three years; and
• the pleading requirements of section 5, which have been strictly enforced in some jurisdictions.

In Western Australia, given the Torrens system and s.68 of the Transfer of Land Act 1893, it is likely that most claims for prescriptive easements against registered proprietors fail unless they fall within the Crown land exception. There is a reported Western Australian decision, perhaps Peconi v Van Heerden (unreported) or Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317 (High Court, NSW), but the source does not name them, so we cannot rely on them.

Practitioners should be aware that the Act’s continued formal existence does not guarantee its practical availability for claims over Torrens title land. The better course is to register a legal easement or profit by grant rather than rely on prescription. Any litigation risk centres on the interplay between the Prescription Act and the Land Administration Act or the Torrens system, which is not addressed in the Act itself.

The one-year submission trap: Section 4 defines an “interruption” as one submitted to or acquiesced in for a year after notice. Many landowners mistakenly believe that any objection or physical barrier breaks the continuity. But if the barrier is removed or the user continues, the clock may not reset unless the user actually gives up for a full year. A single day’s obstruction that is not resisted for a year does not constitute an interruption. This cuts both ways: a user who does not resist an obstruction for a year loses all prior user.

Consent by deed defeats even 60/40 years: Even after 60 years of quiet enjoyment, the right is not absolute if the user was “by some consent or agreement expressly made or given for that purpose by deed or writing.” This is a strict rule. A written licence (not under deed) may still be consent but not “by deed or writing” as the Act requires - the phrase is ambiguous. The drafting “by deed or writing” suggests the consent must be in a deed or a written instrument. An oral licence will not activate this exception, but it will ruin the claim because the user is not “as of right”. So the servient owner’s informal permission may both prevent the claim and yet not preserve their ability to assert consent after 60 years - they lose both ways.

Disabilities only matter before absolute right: Section 7 excludes disability periods “except only in cases where the right or claim is hereby declared to be absolute and indefeasible.” This means that once 60 years (or 40 years for easements) have run without consent by deed, disabilities cannot be used to extend the period. The disability must be ongoing when the right becomes absolute. If the disability ends earlier, the period may be longer, but once absolute, the right is safe.

Leasehold trap for reversioners: Under section 8, if the servient land is let for a term exceeding three years, time during the lease counts towards the 20-year period but not towards the 40-year period - but only if the reversioner resists within three years of the lease ending. A reversioner who fails to object within three years after the lease term ends loses the benefit of the exclusion. At that point, the 40-year period may be complete and the easement absolute.

Pleading pitfalls: Section 5 requires that any defence based on an exception (consent, interruption, disability, lease) must be “specially alleged and set forth in answer”. A defendant who merely denies the claim generally cannot then raise, say, that the user was permissive. This demands careful pleading and early identification of the defence. Conversely, a claimant must allege enjoyment “as of right” for the statutory period. An allegation of long use without the phrase “as of right” may fail.

No presumption for short periods: Section 6 explicitly forbids using proof of, say, 15 years of enjoyment as evidence to support a claim under the Act. The court cannot apply a presumption based on less than the statutory minimum. This stops a party from piggybacking on the Act if they cannot prove the full 20 or 30 years. They must rely on common law or grant, which may be more difficult.

Uncertainty with Torrens title: In Western Australia, the Torrens system generally prevents acquisition of easements by prescription against registered proprietors (Transfer of Land Act 1893 s.68). The Prescription Act does not override that. Litigation risk is high. Many practitioners are caught out by assuming that long user alone creates a legal easement. The correct approach may be to seek a court declaration and then, if the court finds a prescriptive right, the successful party must register it under s.68 only if it can, which is often impossible over Torrens land.

Section 3 repeal: The light and air rules are completely gone in WA. Do not rely on the Prescription Act for ancient lights claims. They must be founded on other legislation (e.g. the Light and Air Act 1902 or common law) and even then, the Torrens system may defeat them.

The Act applies only to the period next before suit: Under section 4, the 20/30/40/60-year period is computed backwards from the legal proceeding. This means that if the user ceased 10 years ago and then litigation starts, the relevant period is the 30 years immediately before the suit, not the last 30 years of actual use. A claimant who stopped using the right may lose it if they cannot show continuous use up to the date of the proceeding.

Compliance with the Prescription Act 1832 (Imp) is not about following a statutory code of conduct but about managing the risk of acquiring, losing, or contesting prescriptive rights. The following steps are practical for landowners, claimants, and legal advisers.

For a landowner wishing to prevent prescriptive rights from arising:

1. Monitor all use of your land by neighbours and others. If anyone crosses, takes water, grazes animals, or exercises any other continuous use, keep records.
2. Interrupt the use physically or by written notice (a deed is best) as soon as you become aware of it. The interruption must be clear and communicated to the user. Do not acquiesce for more than one year.
3. If you grant permission, do so by a formal written licence or deed, stating that the use is by your consent and not as of right. This ensures the user cannot claim “as of right” and also triggers the consent exception for longer periods.
4. If your land is leased for a term exceeding three years, ensure the lease prohibits the tenant from granting easements or profits. At the lease’s end, review any uses that have arisen. If you want to stop them, resist within three years of the lease’s termination (section 8).
5. For Crown or State land, consult the Land Administration Act and ensure any long-term use does not confer a right of profit or easement that the government may want to challenge. The Crown has the same rights and obligations under the Act but may also have statutory protections.

For a claimant seeking to assert a prescriptive right:

1. Ensure your use has been actual, continuous, open, and “as of right” - meaning not by force, secrecy, or permission. Keep documentary evidence: photographs, statutory declarations, records of maintenance, receipts for improvements, witness statements.
2. Identify the earliest date from which you have used the right. Count back 20 years (easement) or 30 years (profit) from the date of any threatened or actual proceeding. If you have 40 or 60 years, you may claim absolute right.
3. If you have less than 20/30 years, you cannot rely on the Act. Consider whether a lost modern grant or common law prescription can be established.
4. Before starting litigation, check the Torrens system. If the servient land is registered under the Transfer of Land Act, you may need to apply for a declaration and seek to register the easement. Understand that the Prescription Act may not directly override registered title - seek legal advice on s.68.
5. In pleadings, allege that you “as the occupier of the dominant tenement” (or as owner) have enjoyed the right as of right for the appropriate period next before the action (section 5). Use the formula “without interruption” and be prepared to prove any interruptions were not submitted to for one year.
6. Anticipate defences: the defendant may claim consent (by deed or writing), disability of the servient owner, or an interruption. You must be ready to rebut them. Keep copies of any deeds or writings that might show consent.

For a solicitor or conveyancer:

1. When investigating title, note any long-standing uses that are not documented. Advise clients that a prescriptive right may already exist, even if not registered, and that it can burden the land.
2. In purchase transactions, obtain statutory declarations from the vendor and neighbours confirming the absence of any adverse use. Obtain title insurance if needed.
3. When drafting leases, include covenants prohibiting the tenant from acquiring or granting easements or profits by prescription. Notify the reversioner of any uses.
4. If a dispute arises, plead specifically. Under section 5, any exception must be specially pleaded. Prepare a defence that lists all grounds (lack of “as of right”, interruption, consent, disability, leasehold exclusion) rather than relying on a general denial. Use interrogatories or discovery to obtain evidence of the user’s nature.

For the court: When determining a claim, apply the periods strictly. Note that section 6 prevents drawing presumptions from shorter periods. Determine whether the right is a profit or easement, then check which period applies. If the right is absolute (60/40 years), ensure no consent by deed appears. If there is a consent deed, the right is not absolute and may be defeated in other ways.

Compliance ultimately means understanding that the Act is a statute of limitations on objecting to long-standing use, not a positive code. The best compliance is to document all land uses and respond promptly to any adverse use.