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A is purchasing a private road which gives access to four houses and also a water meadow. Besides any obligations on the title to the road, are there any implied obligations on the owner of the road (for say repair and maintenance). Also the road runs over a river (so there is a bridge) are there any environmental (or other) issues to be considered say in respect of run-off into the river?
Q&As
In the absence of any express obligation to repair, the general rule is that neither the dominant or the servient owner (see Jones v Price at [631] and Duke of Westminster v Guild Duke of Westminster v Guild at [700F]) is under any obligation to repair a right of way. Taylor v Whitehead [1781] 2 Doug KB 745 (not reported by LexisNexis®UK) and Ingram v Morecraft [1863] 33 Beav 49 at [51–52] (not reported by LexisNexis®UK) suggest that as a
A is purchasing a residential property. A drainage search has revealed that a public sewer runs across the front garden, as well as one at the rear, which runs under the kitchen of the house which was added (and built over the sewer) following an extension in 1996. Planning permission and a building regulations completion certificate were issued, is this enough given the age, or should consent and possibly a build over agreement have been obtained from Thames Water and what issues arise in relation to the sewer below the kitchen?
Q&As
The issues which arise in relation to this matter, bearing in mind timescales involved, will also involve assessing issues of fact and judgment. As planning permission and a building regulations completion certificate were issued, this provides confirmation that the necessary consents were obtained in 1996 following appropriate consultation with the relevant authorities, when consideration would have been given to the location of the sewer. The
A is resident in the UK and was injured by a foreign registered driver and lorry (Poland) on a road in the UK. The foreign insurer (UK representatives) have accepted primary liability. Limitation is coming up and I need to issue the claim form only as we are not yet ready to serve. I have written to the UK representatives explaining that we intend on commencing court proceedings directly against their insurer principal pursuant to the European Communities (Rights against Insurers) Regulations 2002, SI 2002/3061. I have also asked them to confirm the full name and address details of the insurance company and driver. Can I serve on the representatives if they are nominated?
Q&As
Where a person has been injured in a road traffic accident which occurred in the UK but was caused by the driver of a foreign registered vehicle normally based in another participating country, the claim will be handled under the Green Card scheme either by the British insurer acting as correspondent or, if there is no nominated correspondent, by the Motor Insurers' Bureau
A is resident, domiciled and a national of Israel. A owns a flat in the UK but lacks capacity to manage her property and affairs. B has been appointed custodian to take care of her property and affairs by the family court in Israel and wishes to sell the flat. Is it necessary for B to make an application to the Court of Protection for B to be appointed as A’s deputy and obtain an order to sell the UK flat? Alternatively can B get an order in Israel to sell the flat, which can then be ratified by the English Court of Protection? Are there any other particular matters to consider in these types of cross jurisdictional matters?
Q&As
You have asked whether it is possible for a custodian for property and affairs, appointed by the Israeli court to deal with the sale of an English property under the authority of the foreign order (protective measure) or, if not, whether it is necessary to make an application to the Court of Protection for the foreign custodian to be appointed as
A is selling two pieces of adjoining land to B and to C. B will need access to C’s land to maintain and repair the boundary. Is a reserved right of access in the transfer from A to C if A then sells the retained land to B—sufficient to achieve this for B or is there a better way to ensure that B and its successors have this right?
Q&As
This may be the correct way to achieve a right of access from B’s land over C’s land. The reserved right will benefit
A is the beneficiary of personal injury trust. A's spouse, B, receives means-tested benefits. Is there any reason why B should not act as trustee of the trust?
Q&As
Under general trust law, there is no restriction on the spouse of a beneficiary or settlor acting as trustee of a settlement. In fact, there is very little restriction on who may be appointed as trustee; anyone who has the legal capacity to hold the legal title to the trust property may be appointed a trustee of that property. See Practice Note:
A is the executor of their late mother's Will, which is dated 1974 and contains no administrative provisions. The residue is split equally among six beneficiaries, one of which is A. The only remaining asset within the estate is a parcel of land. A wants to buy out the other beneficiaries to own the land themselves but some of the beneficiaries want to retain their interest in the land. Can A override the wishes of the beneficiaries and transfer the land to themselves, in return for paying to each beneficiary a sum of money equal to their share of the market value of the land? Would the situation be different if A wanted to sell the land on the open market rather than have it transferred to themselves?
Q&As
We refer you to Practice Note: Personal representatives and trustees—power of appropriation, which states the following in respect of appropriation: Self-dealing There is no express prohibition in section 41 of the Administration of Estates Act 1925 (AEA 1925) preventing a sole Personal Representative (PR) from appropriating assets to themselves although there is
A is the founder and trustee of a charitable company. Can A add to the permanent endowment but with different voting rights to those set out in the existing articles? The articles of the company do not permit A to have a 'veto' or 'golden vote' which A could trigger if A felt the other trustees were taking the charity in a direction with which A disagreed.
Q&As
Companies limited by guarantee The members of a company limited by guarantee are granted their membership by virtue of the articles of association of the company. Unlike companies limited by shares, their rights are not granted by virtue of ownership of a particular asset. For further information, see Practice Note: Companies limited by guarantee. The articles of association of a company can only be amended by a special resolution of the members of the company. These
A is the life tenant of a Will trust which is comprised of a property. B is the remainderman. During the course of the trust, B has loaned funds to the trust to make improvements to the trust property and these have significantly increased the property's value. Upon A's death, should the property be valued for IHT taking into account the improvements made or will the loans made by B be deductible? What are the likely CGT implications?
Q&As
IHT implications of life tenant's death The inheritance tax (IHT) implications of the life tenant's death will depend on the type of trust. We assume that A has an immediate post-death interest (IPDI) under section 49A of the Inheritance Tax Act 1984 (IHTA 1984) and so, on A's death, the trust property will be valued and counted as part of their estate for IHT purposes under IHTA 1984, s 49. For further guidance, see Practice Notes: The meaning
A is the owner of a property and has granted an option to purchase to B. The option has been noted on the title at the Land Registry. A subsequently also granted an option to purchase to C which has also been noted at the Land Registry with the intention that C would exercise its option if B's option lapsed. B's option is due to expire in one month. If A varies B's option to extend the option period, will this operate to keep B first in the queue as it were and frustrate C's ability to acquire the property free of B's option?
Q&As
This Q&A assumes that: • A (as registered proprietor of the property) applied for the notice protecting each of the options, and so the options are protected by way of an agreed notice • both options were granted after 2002 and so the scheme of the Land Registration Act 2002 applies • negotiated extensions have no contractual force unless supported by value or a deed (Richards v Creighton Griffiths (Investments) Ltd). Therefore,
A is the registered owner of F/H property. A transfers part of the F/H property to B. B fails to register the transfer of part with the LR in time by the time A transfers the F/H property (which includes the part transferred to B) to C. C is registered as the owner of all of the F/H property. When B seeks to register the transfer of part of the F/H, LR reject the application as the F/H is registered in the name C and it is A and not C who is the transferor on the transfer of part. How does B go about getting the LR to register B as the owner of part of the F/H?
Q&As
A transfer of a registered estate is done by the appropriate form, which includes Form TR1 or, where the transfer is of part of a title, Form TP1 (rule 58 of the Land Registration Rules 2003, SI 2003/1417). The effect of the execution of the Form TR1 or TP1 is to transfer the registered estate or relevant
A is the sole beneficiary of the deceased, who died intestate. Several years before the deceased's death, a deputy was appointed to manage the deceased's affairs as they did not have capacity. A alleges the deputy incurred inflated costs, mismanaged the deputyship and disposed of property that A was entitled to. Further, A alleges the deputy mismanaged the estate after the deceased's death. Does A have a claim against the deputy after the deputyship has ended? Would the claim be made as the personal representative of the deceased's estate or as the beneficiary?
Q&As
Locus standi to bring claim on behalf of deceased's estate Section 1 of the Law Reform (Miscellaneous Provisions) Act 1934 provides that all causes of action vested in a deceased person shall survive him for the benefit of his estate. Since an executor derives their title from the Will and not from the grant of probate, they may begin an action as executor before