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A client is taking an option over Farm Land which will trigger a lease if certain conditions are met. There is only one access point to the farm (being the Landlord's Property) but this does not immediately abut the adopted highway & there is an intervening strip of highway (1m or so) which has been revealed (by highways search) as a bridleway. Is our client able to cross the bridleway without breaching the section 34 of the Road Traffic Act 1988 legislation? They would be crossing the bridleway for the purpose of accessing their option site & there is no other access without crossing the bridleway?
Q&As
Section 34 of the Road Traffic Act 1988 (RTA 1988) provides that if without lawful authority a person drives a mechanically propelled vehicle on to or upon any common land, moorland or land of any other description, not being land forming part of a road, or on any road being a footpath, bridleway or restricted byway, he is guilty of a criminal offence. A way shown in a definitive
A client owns land which is subject to a wayleave agreement. The client intends to develop the land and served notice to terminate the wayleave. In response, the electricity company applied for a 'necessary wayleave'. Since this, development has gone ahead around the existing apparatus. However, the electricity company has sought to obstruct development works which has resulted in the owner incurring loss over and above that which they would have incurred. Are these losses likely to be recoverable under the disturbance compensation provisions of paragraph 7(2) of Schedule 4 to the Electricity Act 1989?
Q&As
Paragraph 7(2) of Schedule 4 to the Electricity Act 1989 (EA 1989) states that: ‘Where in the exercise of any right conferred by such a wayleave any damage is caused to land or to moveables, any person interested in the land or moveables may recover from the licence holder compensation in respect of that damage; and where in consequence of the exercise of such a right a person is disturbed in his enjoyment of any land or moveables he may recover from the licence holder compensation
A client prepared a lasting power of attorney (LPA) appointing one of a firm's partners as attorney, and one of its staff acted as a certificate provider. As the certificate provider was from a different branch operating under a different name, the OPG has registered the LPA, despite the fact that the certificate provider is an employee of an attorney. Is the LPA is fundamentally invalid, or can it be validated by the partner disclaiming his appointment as attorney?
Q&As
Under the Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (the 2007 Regulations) SI 2007/1253, reg 8(3) a solicitor is prevented from acting as certificate provider if they are a business partner or paid employee of the attorney(s). This means that where a partner in a firm of solicitors is appointed as an attorney under a lasting power of attorney (LPA), another solicitor in the firm may not act as certificate provider. The application of this rule to limited liability partnerships was considered in the case of Re Putt, 2011 (not reported by LexisNexis®),
A client purchased a flat in a converted house in 2002 (one flat upstairs, one downstairs). However, no formal lease was granted, and the freeholder cannot be found. The titles are not registered at the Land Registry. How should the client go about formalising their position? Does the fact that there is no formal ‘long lease’ mean that he cannot use the provisions in the Leasehold Reform, Housing and Urban Development Act 1993 Act to obtain a new lease?
Q&As
It is unclear on what basis the client in this scenario came to purchase the flat and why no lease was granted at the time. If the freehold to the property was unregistered, the granting of a lease would have triggered first registration under either section 4 of the Land Registration Act 2002 (LRA 2002) (if the lease was granted on or after 13 October 2003) or section 19 of the Land Registration Act 1925 (LRA 1925) (if the lease was granted before that date). Assuming that the client used solicitors to deal with the purchase, the fact that there was no
A client purchased a small parcel of land in 1985 (this parcel remains unregistered). The only proof that the client has of this transaction is a letter from the vendor confirming their purchase and they were not provided with any other deeds. Title reconstruction would not be appropriate as the deeds were not necessarily lost/destroyed, rather the client never received them. Would adverse possession be possible, as the letter confirming purchase may be ‘permission’ to use the land? Are there any suggestions as to the appropriate application to pursue with the Land Registry?
Q&As
In this Q&A, the title deeds were never received rather than destroyed or lost. If there are missing or destroyed title deeds, the application for first registration must give an account of the events that resulted in the loss or destruction. HM Land Registry will consider each case on its merits, but will likely grant only a possessory title where the evidence supplied does not establish those events and put the history of the title beyond doubt. For further guidance, see Practice Note: Deducing title to unregistered
A client replaces its cleaning services provider with a self-employed worker. Is there a service provision change under TUPE 2006 and, if so, does the transferring employee (previously employed by the first cleaning services provider) transfer to the self-employed worker or the client?
Q&As
A relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246 may be: • a business transfer, or • a service provision change Consideration should be given to the definition of ‘relevant transfer’ in TUPE 2006, SI 2006/246, reg 2(1): ‘A “Relevant transfer” means a transfer or a service provision change to which these Regulations apply in accordance with regulation 3 and “transferor” and “transferee” shall be construed accordingly and in the case of a service provision change falling within regulation 3(1)(b), “the transferor” means the person who carried out the activities prior to the service provision change and “the transferee” means the person who carries out the activities as a result of the service provision change.’ While the definition of a ‘person’ in Schedule
A client signed a declaration of trust to split the ownership of a second home (used for family holidays; the client was previously the sole owner), so that it is now owned equally as tenants in common between the client and their two children. The client has until now retained sole responsibility for all expenditure and outgoings for the property. What arrangement could the co-owners put in place to deal with future expenditure and outgoings, without falling within the gift with reservation of benefit regime?
Q&As
Section 102B of the Finance Act 1986, provides that a gift of an undivided share of an interest in land made on or after 9 March 1999 is treated as a gift with reservation of benefit in the relevant period unless: • the donor does not occupy the land • the donor occupies the land to the exclusion of the donee for full consideration in money
A client who is the claimant to ongoing litigation recently died. Can their executor be substituted as a claimant, per CPR 19, prior to obtaining a grant of probate?
Q&As
Where an executor is appointed by a Will, they derive title from the Will and the property of the deceased vests in them from the moment of the testator’s death, including any causes of action. A cause of action survives the testator’s death and devolves to the executor, (save in respect of claims for defamation and certain rights that were personal to the deceased) pursuant to section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934. An executor appointed by the deceased may maintain actions as a claimant before probate has been granted, if they are founded on the executor’s actual possession of the property that is the subject of the litigation before it came into the hands of the defendant. Such possession establishes a prima facie title in them that enables them to sue for their
A client wishes to claim ownership of adjacent land by adverse possession. The client is elderly and has granted a power of attorney to his son. Can the son make and swear the statutory declaration for the purposes of the adverse possession claim?
Q&As
Traditionally, a squatter's application is made using Form Application for Registration of Person in Adverse Possession supported by a statutory declaration or statement of truth. Since revisions to the Land Registration (Amendment) Rules 2008 (LR(A)R 2008), SI 2008/1919 and HM Land Registry Practice Guide 4 on adverse possession of registered land, statements of truth on Form Statement of truth in support of an application for registration based upon adverse possession are now acceptable evidence for land registration purposes, and can be used as evidence in support of an application for adverse possession instead of a statutory declaration. We refer you to LR Practice Guidance 4 at 12.1, which states: 'For land registration purposes, a statement of truth is defined as follows (rule 215A of the Land Registration Rules 2003). • it is made by an individual in writing
A client, 'X', owns a private road. In 1982 they sold a field to 'Y' (for farming). At the time, the field had a gate offering access onto the private road. The transfer contained a right of way along the private road and express provision to access via the gate, the location of which was not defined. Y's son 'Z' has inherited the field. Z without consent, installed a new gate in a different position. He claims a right of way to the new gate. Is Z's right to use the private road limited to access/egress from the original position of the gate?
Q&As
There is no hard and fast rule when it comes to interpreting easements, each one turns on its facts. However, the starting point with an expressly granted easement will always be the deed granting the easement which the court will interpret in its entirety and in its context. Unless clearly directed otherwise, the court will construe the grant in favour of the grantee or owner of the dominant land (William v James). In certain circumstances,
A closer look at the AALCO Hong Kong Regional Arbitration Centre
NEWS
Arbitration analysis: On 29 November 2021, the establishment of the Asian-African Legal Consultative Organization (AALCO) Hong Kong Regional Arbitration Centre was officially announced at the 59th Annual Session of the AALCO. Joseph Chung, partner, and Leo Wong, senior associate in the international arbitration practice at Deacons discuss the implication of this development.
A closer look at the Data (Use and Access) Bill of 2024
NEWS
Information Law analysis: Victoria Hordern, partner at Taylor Wessing LLP, discusses the Data (Use and Access) Bill, how it differs from previous proposals, who will be impacted, and key takeaways for data protection and privacy practitioners.