Acquiring easements by long use: the doctrine of lost modern grant in Hong Kong

In England, it is possible to acquire easements by long usage under the common law of prescription (based on user since time immemorial), under the Prescription Act 1832 or under the doctrine of lost modern grant. The last of these is, to put it no more strongly, the most promising of the three for application in Hong Kong. Under this doctrine, use of a right for 20 years gives rise to a presumed grant. It is assumed that there has been an express grant of the easement but that it has been lost. English law, however, only allows for the acquisition of easements by prescription in the case of fee simple (freehold) land. If this limitation applies in Hong Kong then prescription would have no place here. In China Field Ltd v Appeal Tribunal (Buildings) (No 2) ([2009] HKEC 1765 (CFA)) the Court of Final Appeal held that the limitation does not apply in Hong Kong and that, therefore, it is possible to acquire easements by prescription under the doctrine of lost modern grant even when the dominant and servient tenements are leasehold. This is true even if there is a common landlord.

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