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Rights of way - 3 common trip hazards

Andrew Turner
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A right of way is, in its simplest form, a right to pass from point A to point B, and back again.

It is a right that one landowner has over the land of another owner. The right is often (but not always) granted by a deed, typically a conveyance.

The grant should refer to a plan and will contain words such as: “A right of way is granted for the benefit of Mr and Mrs Neighbour’s property along the access lane shown shaded in blue on the attached plan.”

So far, so good. That all sounds pretty straightforward.

But disputes over rights of way arise all the time. Often, the dispute is not about whether a right of way exists or not but whether the right of way is actually being used in the correct manner.

Nuisance next door

Roanna  Cooling
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Being mindful and considerate of your neighbours is all very well, but what if that approach is not reciprocated and your use and enjoyment of your property is compromised by the same neighbours that you have worked hard to get along with?

Rights of way and electronic gates: the legal powder keg

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Upgrading a manually-operated gate to a more sophisticated, key-coded or fob-operated electronic gate might sound sensible, or practical, or aesthetically delightful, or all of those. But electronic gates are becoming an increasingly common trigger for litigation.

If there is one message to extract from this blog, it is this: do not erect an electronic gate across land that is subject to a right of way without first taking legal advice. Fail to do so and you are highly likely to be on the backfoot before you know it and fighting your way out of a tight spot.

Tenancies "at will": what are they and how can they protect landlords

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What are they? A tenancy at will is a tenancy that allows a tenant to occupy a property indefinitely and which either the landlord or tenant can terminate at any time. Why are they useful? Tenancies at will are not capable of enjoying the protection of...

Travellers: Tackling unauthorised encampment

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The Police, Crime, Sentencing and Courts Act 2022 has introduced a new offence in England and Wales which relates to unauthorised encampment on land without consent, in or without a vehicle.

Unauthorised encampment is where trespassers set up home on land belonging to private landowners or public authorities without the landowner's permission.

Seller Beware!

Andrew Turner
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The principle of caveat emptor or ‘buyer beware’ is a principle that is familiar to many, although sometimes misunderstood. A recent appeal case has provided a reminder of how the Court will apply this principle. Within the context of property...

Occupiers' liability: "The real risk lies in riskless living"

Andrew Turner
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In an increasingly litigious, compensation-focussed society, stories of people trying to apportion legal blame for the most trivial of accidents have become all too familiar. The idea that if someone suffers a loss or injury, a third party must necessarily...

Debt Respite Scheme Regulations - another body blow for landlords

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Many tenants have fallen into significant arrears of rent during the Coronavirus pandemic. Landlords are feeling the financial pain, and the restrictions that have prevented the early termination of leases has added to that pain. And just as we start to...

What a relief!

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Forfeiture is a remedy that can allow a landlord to terminate a lease if the tenant does not make payments of rent. In the case of commercial property, the lease can be forfeited by way of peaceable re-entry - ie changing the locks. But this robust action...

Rights of way: check the small print

Andrew Turner
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When a right of way is granted, conditions might be attached to the right which restrict how you are allowed to use the right of way. A typical example would be a condition that limits use of the right of way to pedestrian use only. Similarly, conditions...

Section 21 Notices and Gas Safety: better late than never

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Ensuring that all the boxes are ticked before serving a valid section 21 Notice has been something of a nightmare for landlords in recent years. Gas Safety Certificates, Energy Performance Certificates, How to Rent Checklists, and Prescribed Information....

Rights of way: what is interference?

Andrew Turner
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A right of way is, in its simplest form, a right to pass across somebody else’s property. There might be conditions attached. For example, only pedestrian access may be allowed. Or the access might be limited to certain purposes only, such as for the...

Pursuing arrears: watch out for the 6 month time limit!

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The June quarter day is fast approaching and, with tenants struggling, protecting a rental income is becoming an increasingly challenging task for landlords. It is therefore essential that landlords do not miss the opportunity to pursue a claim against...

Landlords and tenants: new measures limiting enforcement

Andrew Turner
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Legislation has already been introduced preventing landlords from forfeiting leases due to non-payment of rent. This is now to be followed by measures that will “temporarily void” statutory demands and winding up petitions that are issued...

Public footpaths - taking the law into your own hands

Andrew Turner
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The relationship between private land owners and members of the public exercising rights to traipse over private land is not always a relationship characterised by blissful harmony. It is a relationship that has been tested further by COVID-19. Tensions have...

The Coronavirus Act 2020: tenancy enforcement on hold?

Andrew Turner
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The Coronavirus Act 2020 came into force on 25 March 2020.  It implements a series of measures to protect both landlords and tenants.  Summarised below are some of the key measures affecting business tenancies and residential tenancies. Business...

Rent reductions and suspensions: protect your position

Andrew Turner
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The COVID‑19 crisis has triggered a spate of urgent requests by tenants for rent suspensions.  Given the unprecedented nature of the current operating environment, pushing a tenant into insolvency and/or recovering possession of premises and...

Dare to presume

Andrew Turner
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The Court of Appeal has recently dismissed a mother’s claim to recover a loan which she made to her son to assist with the purchase of the son’s property.  The claim was dismissed on the basis that there was no evidence that the payment...

The Homes (Fitness for Human Habitation) Act 2018

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What is the Homes (Fitness for Human Habitation) Act 2018? The Homes (Fitness for Human Habitation) Act 2018 ( the Act) considerably changes a landlord’s obligations to its tenants and so it is important for landlords to understand these changes....

Injunctions: a reassuring remedy?

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There are several options available to a landlord whose tenant is in breach of the lease, with remedies including forfeiture and damages to protect the landlord and/or to ensure the landlord is compensated for any loss. In what circumstances might a breach...

Mistakes in Contracts: Will the Court intervene?

Andrew Turner
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The Court is often reluctant to interfere with the relationship between contracting parties.  If however there is a mistake in the drafting of a contract, a party can apply to the Court for rectification of that mistake.  Rectification is typically...

The Tenant Fees Act: Landlords Take Note

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The Tenant Fees Act 2019 (“the Act”) came into effect on 1 June 2019. It applies to all new contracts signed after this date and will also apply to any existing tenancies from 1 June 2020.   The Act prohibits landlords and agents from...

A frustrating lease - the Brexit effect

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Frustration of a contract occurs where an unforeseen event results in the contract (after it has been created) being physically or commercially impossible to fulfil. If a contract is ‘frustrated’, both parties to the contract are released from...

Freefall: Landlords and the Defective Premises Act 1972

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Ms Rogerson (“Ms R”) lived in a Council property owned by Bolsover District Council. Ms R was the tenant and Bolsover Council the landlord. In September 2013, Ms R was mowing her front garden when she stepped backwards onto a manhole cover. The...

Telephone masts - not in my back yard thanks

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As the saying goes, an Englishman’s home is his castle and there is nothing quite like a disagreement regarding someone’s castle to make litigation personal. Having a dispute with a neighbour regarding a boundary is one thing but what about when...

Rights of way and perpetual motion

Andrew Turner
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If you are granted a vehicular right of way over neighbouring land, and the right is described as a right to “pass and repass”, are you allowed to park on that neighbouring land so that you can load or unload? What about stopping so that a...

Negligent contractors - should they be removed from the property?

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As spring is in full swing and summer stampedes towards us, many people look towards the garden and consider what needs to be done to enjoy a barbecue in the sun. Hopefully, you just need to mow the lawn and spruce up the flower beds, but if you require...

Does silence amount to a breach of covenant?

Andrew Turner
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It is common for leases to contain a covenant requiring a tenant to provide the landlord with access to the premises upon receipt of a period of notice. The lease will usually specify how much notice has to be given and for what purpose the access is...

Paved with good intentions

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Does it really matter if your neighbour kindly assumes responsibility for the upkeep of part of your land? Say, for example, the paving stones on your patio are broken and cracked and your neighbour kindly levels the area and repaves the patio. The patio has...

Building Inspector dodges liability

Andrew Turner
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Imagine that you have just purchased a new-build flat. Shortly after moving in, you discover that the building is riddled with defects including faulty fire protection, defective drainage, inadequate ventilation, and non-functioning sanitation.  You...

Unopposed lease renewals - how does the Court decide terms?

Andrew Turner
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The recent County Court case of Dukeminster Limited v Westend Investments (Cowell Group) Limited has provided guidance in relation to what is likely to happen if your section 25 Notice contains a mistake and also on the question of how the Court will...

Think before 'Droning on'......

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With drones now selling for as little as £50, and both commercial and private use of drones increasing rapidly, sometimes for dubious purposes, is there any law regulating the use of drones or have the skies become the Wild West? Many of the...

To answer or not to answer? That is the question.

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  For those of you who have sold a property in the past, you will be aware of the reams of questionnaire forms that you are required to complete to provide information about the property to your prospective buyer. One of these forms, the Property...

Housing benefit - curse or cure?

Andrew Turner
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A survey carried out by Shelter in 2017 found that 43% of private landlords applied a policy of refusing to accept tenants in receipt of housing benefit. This apparent discrimination has provoked a considerable amount of public outrage and media attention. ...

Overage Agreements

Andrew Turner
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In the recent case of London and Ilford Limited v Sovereign Property Holdings Limited , the Court of Appeal has left a property developer with a bloody nose and a financial headache.    In the context of a property transaction, the term...

Dangerous cladding - who pays?

Andrew Turner
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Following the Grenfell tragedy last year, there has been panic amongst owners of blocks of flats up and down the country prompted by the realisation that their own blocks may be clad in the same apparently lethal material that appears to have triggered the...

Disability discrimination claim against lender dismissed

Andrew Turner
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In the recent case of Green v Southern Pacific Mortgage Limited , the Court of Appeal was asked to consider whether a lender’s failure to agree to change a disabled borrower’s mortgage from a repayment mortgage to an interest-only was...

When trespassers come to stay

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In a nutshell, a trespasser is someone who occupies property without the permission of the owner. Getting rid of trespassers is easy, right?  In some cases, yes. But in cases of a relationship breakdown where one partner who owns the house asks the...

Ignorance of the rules is no defence

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The Supreme Court has recently handed down a judgement in a case involving an individual's claim against his firm of solicitors,

Barking mad or fair enough?

Andrew Turner
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It is a restriction that you will find in many leases.  A ban on tenants keeping pets in the property.  An absolute ban seems pretty black and white; pets are banned, simple. But what if the lease says that you can keep pets but you need to seek...

When innocence is no defence

Andrew Turner
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  Judges are only human.  They make mistakes and they get things wrong. This was illustrated all too clearly in the repossession case of Teign Housing v Lane. This was a Housing Association’s repossession claim against a tenant suffering...

I want my property back - is there a problem?

Andrew Turner
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There has been a lot of discussion in the media recently about revenge evictions and the precarious status of tenants who occupy residential properties on short term tenancy contracts or on monthly periodic contracts.  The argument goes that these...

Battle of the Beach Huts 2017

Andrew Turner
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A landowner allows an individual to erect a beach hut on his land. That individual then starts using the beach hut periodically and pays an annual fee to the landowner. After a few years, the landowner wants the beach hut off his land. What is the landowner...

Shop or drop

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The Upper Tribunal has ruled that a landlord’s failure to shop around and obtain a competitive insurance quote meant that the premium was not “reasonably incurred” and therefore not payable by the tenants. In the case of Cos Services Ltd v Nicholson & Willans, a landlord was responsible for the insurance of a block of flats. The tenants were obliged to contribute to the insurance premium via the service charge.

Boundary disputes - nipping them in the bud

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Boundary disputes between neighbours are a perennial problem. They always have been and they probably always will be. They rarely end well. They cause a great deal of animosity and tension. And disputes can arise in relation to the smallest patch of land...

Defective Premises - landlords treading a very fine line

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For the second time in twelve months, the court has excused a landlord from potential liability under the Defective Premises Act 1972. The Defective Premises Act imposes a duty on a landlord to ensure that a property is maintained and repaired in such a way...

1954 Act comes under attack

Andrew Turner
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The High Court has ruled that a landlord’s development scheme, contrived for the sole purpose of defeating a tenant’s security of tenure, allows a landlord to successfully oppose a tenant’s statutory request for a new lease....

Service charges - a chilling reminder for landlords

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Service charges are one of the principal areas of dispute between leaseholders and their landlords. A recent case has again highlighted the importance of landlords being aware of the key regulation in this area and what they need to do to comply with the...

Dreaded Japanese Knotweed

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There are many things a potential buyer should be aware of, but none more so than the dreaded Japanese Knotweed. This invasive plant spreads like wildfire and is well-known to cause damage to buildings and hard structures. Not an attractive prospect for a...

Turkish Delight - You Get What You Pay For

Andrew Turner
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A note recently issued by the Turkish Government has confirmed that foreigners who buy property worth at least $1million can obtain Turkish citizenship. The note confirms that citizenship will also be offered to foreigners who deposit a minimum of $3million...

A Solicitor Cover Up

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A solicitor caught up in a fraudulent property transaction was cleared of dishonesty despite breaching the Money Laundering Regulations 2007 and subsequently trying to cover the matter up. The case of Pemberton Greenish LLP v Henry [2017] concerned a claim...

Business Rates and Common Sense

Andrew Turner
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The issue that arose in the case of Newbigin (Valuation Officer) v S J & J Monk was whether a property can be deleted from a rating list whilst significant building works are being carried out.   In this case, an office building in Sunderland was...

Boundary disputes - stumbling through the red mist

Andrew Turner
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Understanding what has sparked off the dispute between the parties in the first place is essential.  It is very rarely the case that a party has pulled out his title deeds and decided that there is a problem with the boundary.  There is usually...

Eviction of lodgers and licensees - what notice?

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It is important to firstly establish whether a lodger has a tenancy agreement or whether the lodger simply has a licence to reside at the property. A tenancy agreement is going to put you within the realms of the Housing Act and two months' notice. A...

It's just a boundary - get over it

Andrew Turner
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Identifying the real reason for a boundary dispute kicking off in the first place is an essential part of working out the best way to resolve it.  Contrary to what one might logically believe, it is rare for a boundary dispute to start as a result of...

Proposals to ban dodgy landlords and agents

Andrew Turner
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The Government is considering new legislation to enable bans to be imposed on what are deemed to be “criminal landlords and agents” preventing them from operating in the private rented sector.   The proposals have generally been welcomed....

Pokemon Go - "A serious risk to landowners and players"

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By Thomas Airey, Trainee Solicitor The new mobile app Pokémon Go, launched in July 2016, has quickly become a global sensation; an addictive and potentially beneficial pastime for a great many would-be trainers of cartoon monsters.  The game...

Rights of Way: is a gate an obstruction?

Andrew Turner
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Gates and rights of way can be an unhappy mix. I often hear the cry "my neighbour has put a gate across the lane. He can't do that. I've got a right to pass along that lane. I want to get an injunction against him" . Breaking it to the...

Space-sharing innovation, Airbnb, under threat

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Anyone, anywhere in the world, can list space for rent on the space-sharing website, Airbnb. ‘Space’ is the keyword – you don’t have to own a palace or a luxury annex to earn some extra cash. In fact, the founders of Airbnb literally...

Nightmare on Elm Street

Andrew Turner
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  New legislation is aimed at helping residential landlords to recover possession Consider the following scenario.  You are a landlord of 21 Elm Street, a terraced property on a quiet residential street.  Your tenant is 3 months into his...