Case Highlights Importance of Researching Property Use
15th January, 2014
When land has been used by someone who has no legal entitlement to use it for 20 years without interruption, an ‘easement’ can arise under the Prescription Act 1832. In principle, an easement gives the legal right to continue the use indefinitely. For an easement to arise, the use must be open (not secret), without force and without the permission of the owner of the land. A lease cannot therefore create an easement.
It is therefore not uncommon for legal rights of use of land to arise without any intent, as a recent case illustrates. It involved a local council which allowed, for a period of more than 20 years, the parking of cars on its land. Despite the fact that the title to the land had subsequently been passed to a new owner, and on his death to his wife, and that a subsequent lease had been agreed over the land in 2004, the earlier use for car parking for more than 20 years was sufficient to create an easement over the land and this passed with the title to it.
An argument by the council that the use of the land had effectively ‘ousted’ it from its own property was also rejected. The court ruled that the council could have used the land for other purposes, but it did not.
The message for landowners is clear – if you allow others to occupy your land on a casual basis for a long period, you may lose the right of exclusive use and occupation.
For buyers of land, researching the history of its use is important in order to make sure that rights over it have not arisen of which the vendor is unaware.
For further information please contact Giles Williams on 01244 405578 or email [email protected]
You might also be interested in...
22nd November, 2018
Family Law Partner Sandy Edwards believes there is. Next week, from 26 to 30 November, Resolution, an organisation of 6,500 family lawyers and other professionals, will be promoting “Good Divorce Week” which will focus on how separating and divorcing couples can put their children’s needs first and limit the impact of conflict. The week falls during the government’s divorce... Read More »
16th November, 2018
It is reported that a quarter of all complaints dealt with by the Legal Ombudsman revolve around costs. Therefore to avoid complaints and confusion, it is important to be clear from the outset. The new Transparency Rules (which the SRA have now confirmed will come into effect on 6 December 2018) require that accurate and relevant information is... Read More »
5th November, 2018
Aaron & Partners LLP has once again seen improved rankings in The Legal 500 – a comprehensive guide... Read More »