Prescription Act 1934
An Act to consolidate and amend the law relating to prescription
[Royal Assent 27 November 1934]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
This Act may be cited as the Prescription Act 1934 .
2. Claims to profits à prendre
No claim which may be lawfully made at the common law, by custom, prescription, or grant, to any profit or benefit to be taken and enjoyed from or upon any land of the Crown, or of any person, or body corporate, except such matters and things as are herein specially provided for, and except rent and services, shall, where such right, profit, or benefit shall have been actually taken and enjoyed by any person claiming right thereto without interruption for the full period of 30 years, be defeated or destroyed by showing only that such right, profit, or benefit was first taken or enjoyed at any time prior to such period of 30 years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and when such right, profit, or benefit shall have been so taken and enjoyed as aforesaid for the full period of 60 years, the right thereto shall be deemed absolute and indefeasable, unless it shall appear that the same was taken and enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.
3. In claims of right of way or other easement the periods to be 20 years and 40 years
No claim which may be lawfully made at the common law, by custom, prescription, or grant, to any way or other easement, or to any watercourse, or the use of any water, to be enjoyed or derived upon, over, or from any land or water of the Crown, or being the property of any person, or body corporate, when such way or other matter as herein last before mentioned shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of 20 years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of 20 years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and where such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of 40 years, the right thereto shall be deemed absolute and indefeasable, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing.
4. Before mentioned periods to be deemed those next before suits for claims to which such periods relate
[Section 4 Amended by 25 Geo. V No. 78 ]Each of the respective periods of years hereinbefore mentioned shall be deemed and taken to be the period next before some proceeding wherein the claim or matter to which such period may relate shall have been or shall be brought into question, and no act or other matter shall be deemed to be an interruption, within the meaning of this statute, unless the same shall have been or shall be submitted to or acquiesced in for one year after the party interrupted shall have had or shall have notice thereof, and of the person making or authorizing the same to be made.
5. Rights of claimant as to allegations of right
[Section 5 Amended by 25 Geo. V No. 78 ](1) In all actions upon the case and other pleadings, wherein the party claiming may now by law allege his right generally, without averring the existence of such right from time immemorial, such general allegation shall still be deemed sufficient, and, if the same shall be denied, all and every the matters in this Act mentioned and provided, which shall be applicable to the case, shall be admissible in evidence to sustain or rebut such allegation.(2) In all pleadings to actions of trespass, and in all other pleadings wherein before the passing of this Act it would have been necessary to allege the right to have existed from time immemorial, it shall be sufficient to allege the enjoyment thereof as of right by the occupiers of the tenement in respect whereof the same is claimed for and during such of the periods mentioned in this Act as may be applicable to the case, and without claiming in the name or right of the owner of the fee, as is now usually done; and, if the other party shall intend to rely on any proviso, exception, incapacity, disability, contract, agreement, or other matter hereinbefore mentioned, or on any cause or matter of fact or of law not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such allegation.
6. Restricting the presumption to be allowed in support of claims herein, &c.
In the several cases mentioned in and provided for by this Act, no presumption shall be allowed or made in favour or support of any claim, upon proof of the exercise or enjoyment of the right or matter claimed for any less period of time or number of years than for such period or number mentioned in this Act as may be applicable to the case and to the nature of the claim.
[Section 7 Amended by 25 Geo. V No. 78 ][Section 7 Amended by No. 51 of 1985, s. 4 and Sched. 2, Pt.II ]The time during which any person otherwise capable of resisting any claim to any of the matters before mentioned shall have been or shall be an infant, a patient within the meaning of Part VI of the Mental Health Act 1963 , or tenant for life, or during which any action shall have been pending, and which shall have been diligently prosecuted, until abated by the death of any party thereto, shall be excluded in the computation of the periods hereinbefore mentioned, except only in cases where the right or claim is hereby declared to be absolute and indefeasible.
8. What time to be excluded in computing the term of 40 years appointed by this Act
[Section 8 Amended by 25 Geo. V No. 78 ]When any land or water upon, over, or from which any such way or other easement or watercourse or use of water shall have been or shall be enjoyed or derived hath been or shall be held under or by virtue of any term of life, or any term of years exceeding 3 years from the granting thereof, the time of the enjoyment of any such way or other matter as herein last before mentioned, during the continuance of such term, shall be excluded in the computation of the said period of 40 years, in case the claim shall, within 3 years next after the end or sooner determination of such term, be resisted by any person entitled to any reversion expectant on the determination thereof.
As from 25th August 1910 no right to the access or use of light to or for any building shall have been or shall be capable of coming into existence by reason only of the enjoyment of such access or use for any period, or of any presumption of a lost grant based upon such enjoyment.
10. Use of window not to found easement of air
[Section 10 Added by No. 68 of 1962, s. 39 ](1) After the commencement of the Local Government Act 1962 no right to the excess of air to or for any building is capable of coming into existence by reason only of the user or enjoyment of such access for any period or a presumption of a lost grant based on such user or enjoyment.(2) This section does not affect the validity of a title to an easement of access of air to a defined aperture on the dominant tenement that rests only on evidence of user or enjoyment before the commencement of that Act.