Joanna Bhatia reports on lost modern grant, not a lost modern remedy
Practitioners may see the doctrine of lost modern grant as something for law students to puzzle over, but of little practical relevance. It is, however, a mistake to dismiss or overlook the doctrine, which can be a very practical remedy. The doctrine is a judge-made fiction which avoids the problems inherent in proving the acquisition of a right by common law or statutory prescription.
Common law prescription is based on a presumed grant made before 1189 (the start of legal memory). The Prescription Act 1832 was passed to avoid the problem of proving user since 1189. However, the claimant must show a period of uninterrupted use for the 20 years immediately preceding the claim. With lost modern grant, the claimant must also show 20 years use, but the period need not immediately precede the claim. It can have expired at an earlier time.
The doctrine of lost modern grant is useful in situations where: user since before 1189 cannot be proved; and the servient owner has recently taken steps to defeat a claim.
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