Jessica Piper-Thompson, Solicitor and Head of Property Litigation, Wessex Region discusses the latest case law arising from Rights of Way Disputes
The case of Winterburn v Bennett  EWCA Civ 482 raised an issue as to the steps which a landowner must take to prevent others using the land, without permission, from acquiring rights over the land.
The Winterburns own and run a fish and chip shop which is next to a privately owned car park. They have run the chip shop since 1987. Up until 2012, when they were prevented from doing so, suppliers would park on the car park for as long as it took to make their deliveries to the chip shop. The car park was also used by the chip shop’s customers.
The car park, together with the club house on the far side of it, was owned by the Conservative Club Association until 2010 when it was purchased by the Bennetts.
The Association put signs in the window of the club house and on a wall fronting the car park, stating that the car park was private and was for the use of patrons of the club house only. The sign on the wall was in place until the wall was demolished in 2007. The steward of the Association had told the Winterburns, their suppliers and customers that they had no right to park on the car park; however neither the signs nor the steward’s assertions deterred them.
The Bennetts rented out the car park and club house in 2012. Their tenant obstructed access to the car park from the road, which the Winterburns were not happy about.
The Winterburns claimed that they had acquired what is known as a ‘prescriptive right of way’ for the benefit of the chip shop, over part of the car park, by virtue of the fact that they had used it for 20 years or more, as of right (i.e. without force, secrecy or permission).
The Winterburns’ did not have permission to use the car park and they had not done so secretly. In this case, it was the element of ‘without force’ that was in issue. The Winterburns would have to demonstrate that their use was not ‘under protest’. Did the circumstances suggest that the owner of the car park objected, and continued to object, to the unlawful use by the Winterburns? Was it necessary for the owner of the car park to take steps, through physical means or legal proceedings, to prevent the Winterburns from using the car park in the way they did? Or, were the signs, which stated that the car park was private property, enough to make the Winterburns’ use of it contentious?
This may sound as though it should be fairly straight forward, but it was not. The case was first heard by the First-tier Tribunal (Property Chamber), who held that the Winterburns had established their claim to parking rights, then that decision was overturned by the Upper Tribunal (Tax and Chancery Chamber), who’s decision was upheld by the Court of Appeal.
The Court of Appeal decided that signs displayed on land indicating that the land is for private use only are sufficient to prevent someone from claiming a prescriptive right over the land, even where the signs are completely ignored for the prescriptive period and no steps are taken by the landowners to enforce their rights.
The Court found that it was not necessary for the owners, having made their protest clear, to take further steps or to be put to the time, expense and trouble of legal proceedings.
Lord Justice David Richards acknowledged that “[t]here is a social cost to confrontation and, unless absolutely necessary, the law of property should not require confrontation in order for people to retain and defend what is theirs. The erection and maintenance of an appropriate sign is a peaceful and inexpensive means of making clear that property is private and not to be used by others.”
If you own land or property that may be accessible to others and which others’ use of is difficult to control or police, it is worth giving careful consideration to putting up some well-placed, carefully worded signs in prominent positions to make it clear that your property is private and is not to be used by others. Such a straightforward step might save you from inadvertently allowing others to acquire rights over your land, by virtue of long user (i.e. 20 years or more).
If you are concerned that others have been using your land or property unlawfully over a period of time, avoid the trap created by complacency and seek advice as to whether you can prevent them from acquiring prescriptive rights over the land.
At MW, our mission is "To make quality legal services accessible to everyone", including landowners who are in dispute with others over prescriptive rights to use parts of their property.
Our dedicated Property Litigation Team have the experience and knowledge to help you to resolve your issues in an efficient and timely manner. If you have an rights of way issue you would like to discuss with our team call us today on 0203 551 8500 or email us at firstname.lastname@example.org
The shocking headline and nightmare scenario facing one family in Cornwall is not as unusual as you might think. According to British Geological Survey records, 20 sinkholes formed in February 2014 alone, some of which opened up in densely populated urban areas in and around Greater London.
Sinkholes form for a variety of reasons, but undertaking a geological survey as part of your search package when you buy your home is one way of mitigating the risk. If you are a homeowner affected this can be a costly oversight.
Anton Osborne, Partner & Divisional Partner, Property says:
"At MW we strongly recommend that specific and appropriate searches are taken out in respect of all conveyancing transactions. Where properties are in certain areas we would always recommend taking out extra searches to associated with specific risks in those areas. As can clearly be seen in this case trying to save money on searches is a false economy. Houses are usually the most expensive purchases anyone ever undertakes and therefore we would encourage our clients to be as thorough as possible in respect of their due diligence including taking out searches, full surveys and not simply relying on mortgage lender valuations."
Maria Christoforou, Partner & Head of Property Law adds:
"It is essential that the right type of searches and a survey are carried out on a property to identify any potential problems or issues. The cost of carrying out appropriate searches is very low when weighed up against the potential devastating consequences which could have actually cost someone their life in this case."
At MW we offer our clients a comprehensive range of searches to give them piece of mind. If you are considering a property purchase or would like to talk to one of our specialist solicitors regarding our search packages call us today on 0203 5512 8500 or email us at email@example.com.
A TPO is a written order which, in general, makes it a criminal offence to cut down, top, lop, uproot, wilfully damage or wilfully destroy a tree protected by that order, or to cause or permit such actions, without the Local Authority’s permission. The principal purpose of a Tree Preservation Orders (TPO) is to preserve trees which are normally located on privately owned land.
All types of tree (but not hedges, bushes or shrubs) can be protected, and a TPO can protect anything from a single tree to all the trees within a defined area or woodland. There is no statutory definition of what constitutes a “tree” and specialist advice should always be sought before any planned works take place on protected vegetation.
Tree Preservation Orders (TPOs) are made under the Town and Country Planning Act 1990 and the Town and Country Planning (Tree Preservation) (England) Regulations 2012. Planning conditions are normally conditions which are applied when planning applications affect existing trees - they are normally only temporary (for up to two years) but some last for longer, and indeed some have no time limit at all, so even if your tree is in an area where no planning permission has been granted recently it is worth checking.
The starting point would be the Gov.uk website which allows a householder to check the status of trees and this can be done prior to the purchase of the property by prospective buyers. However, some TPO date back to 1949 and there is the possibility that Local Authority records may not be accurate. A TPO should show up on the Local Land Charge search that your Solicitor undertakes but this is not always the case.
If you are thinking of buying a property or land with which there may be an issue concerning a tree preservation order it may affect the value or restrict the way in which you use your home now and in the future. Whether the property is in a city such as London or Brighton or in the countryside, our team of experienced residential conveyancing Solicitors can help.
If you are already the property owner you need to be aware that anyone found guilty of such the offences listed above is liable. In serious cases the case may be dealt with in the Crown Court where an unlimited fine can be imposed. If notice of the TPO has not been served on the landowner (and in many cases it has not, or records of the service were not kept), then they may genuinely be unaware of the protection.
In such a case, although an offence may still have been committed, it is likely that any penalty would be less severe than otherwise. However, if the felling or lopping was necessary for the prevention of a nuisance there will be no offence. In either case, MW's has experienced civil litigation Solicitors who can help you to resolve the matter.
Normal TPO procedures apply if a tree in a conservation area is already protected by a TPO, but if a tree in a conservation area is not covered by a TPO you must give written notice to the Local Planning Authority (LPA) of any proposed work, describing what you want to do, at least six weeks before the work starts.
This is called a “section 211 notice” and it gives the LPA an opportunity to consider protecting the tree with a TPO.
If the Local Authority decides to lift the TPO, the usual reason is if there has been some mistake in the making of the Order and a new one is needed to correct it.
If you want to do works to the trees, don't try to remove the TPO, you only need to apply to the Local Authority for permission to do the works. If you've got a good enough reason then the Local Authority will allow it. If not, they won't.
If the TPO is confirmed it can be modified in the confirmation process and you should seek specialist advice before submitting the notice to avoid missing this opportunity.
If the Local Authority refuse unreasonably, there is an appeal process which is set out in the law and damages can be claimed under the Town and Country Planning Act 1990 which normally takes place in the Lands Tribunal.
Landowners should always consider having a survey carried out on the number of trees within an area identified within a TPO, particularly if it is likely that the existing density of trees within the woodland is less than may be assessed by standard planting densities.
If you're in any doubt as to how to do this, call our specialist solicitors who are experienced in dealing with Local Planning Authorities, and they can submit an application for you.
If you bought a property and subsequently discovered that there is a TPO in place that you cannot lift or modify and it was in place when you bought the property, you may be able to make a claim for professional negligence.
You must be able to demonstrate that the omission of the TPO has caused you loss.
The Court will need to establish that the conveyancer owed "a Duty of Care" to you as the buyer and will consider if:
At MW, our mission, is "To make quality legal services accessible to everyone" including property owners who want to get a TPO lifted or have discovered a TPO on their property as a result the negligence of their conveyancer. Our team of dedicated solicitors have many years of experience dealing with TPOs and Professional Negligence matters.
If you wish to have a free initial discussion about your TPO matter call us today on 020 3551 8500 or email us at firstname.lastname@example.org.
Do you want to be out of pocket by paying the chancellor an additional 3% in Stamp Duty Land Tax (SDLT) when you buy your investment or newly build property?
If the answer to that is NO!, then you need to ACT NOW to try to ensure you complete before the end 1st of April 2016 when the new rules Stamp Duty rates come into effect.
The new rates could mean you pay much more than you bargained on:
|Value of second property||Current SDLT||SDLT from 1 April 2016||Increase in tax|
At MW solicitors, we have a team of lawyers who specialise in acting for buyers of brand new properties. We are used to dealing with buyers who need to process their transactions quickly.
A fixed term tenancy may include a break clause which enables either party to terminate the tenancy before the fixed term ends. For example you may have a 10 year lease which may include a break clause allowing either party to terminate after 5 years, or there may be more than one break clause during that period of time.
The break clause may also contain terms and conditions that have to be complied with before it is held to be valid. For example it may state that you have to serve the break clause on a certain person and by a certain way of service. If you do not follow the exact terms then the break clause will not be effective.
You must also make sure that all the terms of the tenancy have been complied with. This means that you must comply with your responsibilities to repair the premises so you must make sure that when the break clause is exercised your repair obligations have been fully met.
You must also make sure that all rent and other monies payable are paid in full. This includes not only rent and service charges but also interest that may have become payable over the term of the lease, even though it has never been demanded. For example the tenancy will normally say that rent is payable by a certain date and if not, interest may become payable. In many situations the Landlord does not bother to claim the interest, however if interest is due under the terms of the lease you must make sure that interest is paid, otherwise you will not be able to exercise the break clause.
It is very important that you check the exact terms of the break clause and make sure that all the terms of the lease and payments due under its terms, whether claimed or not, are paid.
If you are in dispute with your Landlord over the amount of rent or service charge payable you should still make sure that the whole amount claimed is paid otherwise the break clause cannot be exercised. Once it has been exercised and accepted you can still continue to dispute the amount owed, even if not paid.
For specialist advice on Break Clauses or any other property related dispute, contact MW's Specialist Solicitor Gary Leverett or call direct on 0203 551 8024.