Legal Issues in Architecture - Case Study Example

Legal Studies Background In legalese, real property is real e that de s a piece of land, including the air above it and the ground below it, and things permanently affixed to the land, such as trees, fences, including minerals, and any buildings or structures on it. In civil law systems, real property is termed immovable property or immovables that signify item of property that cannot be moved or inherently permanent structures located on land. Questions and Answers 1. To what extent (if at all) can John enforce the covenant against Robert Since Robert is the heir of the covenantor for the retaining wall, of which a real covenant is assumed to have been committed, he is obliged to maintain the wall, and as such, John may invoke this covenant in order to protect his property from damages that may arise due to the collapse or destruction of the retaining wall located in Robert's property. A covenant is an agreement written under seal commonly used with reference to sales or leases of land. Covenants are privately negotiated and agreed not necessarily obligating both parties involved, but a promise to perform or give something to the other party. The legal document is part of the deed of ownership and represents a binding contract between two parties: the covenantor (the person bound to perform the promise or stipulation) and the covenantee (the person on whose favour it is made). In this instance, Robert is the covenantor, one doing the favour, and John is the covenantee, for whom the favour is intended. Favour at this instance is the retaining wall in Robert's property. Covenants are subdivided into numerous classes. Restrictive covenant is a covenant which restricts the use of land, which is binding not only upon the current owner, but also upon the future owners of the land. A covenant real runs with the land and descends to the heir and is also transferred to a purchaser. If the original owner of Robert's land covenanted to maintain the wall, then the nature of the covenant is a restrictive covenant. Robert is obliged by the restrictive covenant to maintain the retaining wall that already exists. Trying to get a covenant enforced is risky and can be expensive and time consuming. If a covenant is breached, John should check if enforcement is possible by going through the courts. He would need to prove if his rights are affected. If Robert fails to maintain the retaining wall on his property and risks to damage or cause detriment to John's property, John must show that the disrepair of the retaining wall amounts to liability on Robert's part. 2. Does John have a right of support from the wall What is the nature and effect of such a right John has a right of lateral support from the wall. Since John's property or soil had not been altered and it was in its natural state, thereby allowing for the right of lateral support. Lateral support is the right of a landowner expected from the neighbouring property against any slippage, cave-in, landslide, flood, etc. In the case of the two owners, in addition to separating lands, the retaining wall serves to retain the earth. Although John's land is at a much lower level than Robert's, he still has the right of lateral support since the right signifies maintaining the land in its natural position. Since Robert owns the retaining wall, it is his obligation to maintain the wall to prevent soil from slippage upon the adjoining property and that the damage or impending damage is due to the natural state of his property, at this instance, the growing roots of a tree in his property. This impending damage on another's natural state of property requires Robert to give due John's right of lateral support. In this instance where John's property is in danger of land slippage from Robert's property due to a caving or damaged retaining wall that has been covenanted by Robert, caused by the growing trees in Robert's property, John may seek lateral support. 3. Can the tree be chopped down if it is subject to a tree preservation order John needs to request from Robert necessary or proper action on the tree in Robert's property if his intention is to protect his own property. First, it must be established whether or not the tree is subject to preservation order. If both have agreed to cut off the tree, then, Robert have to seek consent from the Department of Environment with supporting documents needed as to what action needs to be done or for what reason. Protecting trees is considered to be of significance in particular areas. A Tree Preservation Order (TPO) provides protection for a tree specified in the order and can also covertrees, groups of trees, areas of trees, or woodlands. TPO is issued if it is deemed that the tree offers amenity value to the surrounding area and that its loss would have a significant impact on the environment and its enjoyment by the public. It is a criminal offence to cut down, top, lop, uproot or wilfully destroy or damage a tree in a manner likely to destroy it, or permit these actions without first seeking the Department of Environment's permission. The deliberate destruction of a tree may result in legal proceedings leading to maximum fines of 20,000. In determining the fine, the Court may take into account any financial benefit which appears likely to have accrued as a result of the offence if convicted in the Magistrates' Court. It is important to first seek consent from the government before cutting down or carrying out works to trees subject to a TPO. An application for consent must be made in writing to a local Department of Environment office, specifying the trees, the work to be done and the reason why for the action. Should the council refuse to grant permission, appeal may be submitted within 28 days of the decision. If consent is granted, applicant should make sure that necessary permission is obtained from the owner of the tree. Consent is not required for the removal of trees which are dead, dying or dangerous. Consent is also not required for the cutting down, uprooting, topping or lopping of trees to comply with obligations imposed by any statutory provision, such as a grant of planning permission, or to prevent or reduce a nuisance. It will be the duty of the landowner to plant replacement specimen in the same location as soon as reasonably possible. If John and Robert are unsure whether the tree falls within the exemption, they are best advised to obtain the opinion of an arboriculturist or someone who is trained and authorized in forestry. Since John, in this instance have the right of lateral support, considering the provisions already stated above, Robert's permission and cooperation as well as the advise of an arboriculturist are enough for both of them to agree on either cutting down, chopping and planting a replacement for the tree. 4. If the wall was a party fence wall (rather than a boundary wall), how would this affect the position If it happened that the wall between John and Robert's properties had been a party fence wall, it could have been an entirely different situation. John may opt to do repairs irregardless of encroachment of the wall on the property of Robert. But before taking any action, John needs to inform Robert of his improvisation intents and provide necessary lay-out or plans. A mutual agreement or understanding must first be established since neighbours are more than just acquaintances that need not be formal and distant to one another. An informal agreement may be a better option than resorting to legal steps such as John serving a formal two months notice to his neighbour, as well as a 14-day counter notice from Robert. It is to be understood in this context that a boundary wall is built wholly on one side of a boundary that belongs to the owner. A party fence wall is a wall that is not part of a building but which straddle the boundary and is owned jointly by different owners. Wooden fences are not included as a party wall fence, but garden walls are. It does not matter if the wall is centred on the boundary. So long as the wall partly encroaches the other property, it is considered a party fence wall. Both owners are entitled to repair and maintain a party fence wall. The Party Wall Act 1996 was a framework introduced to resolve disputes near boundaries. Some of an owner's rights covered by the Act are: make good or repair, raise and underpin, changing the thickness, weatherproofing, etc. If an owner intends to carry out works on the wall, he must inform the adjoining owner. An owner cannot even cut into his own side of the wall without telling the adjoining owners of the intention. Two months notice on the adjoining owner must be served before carrying out work. An adjoining owner may issue a counter-notice within fourteen days. An owner is responsible for making good any damage caused by the works or must make payment in lieu of making good if the adjoining owner requests it. An owner must not do anything that causes unnecessary inconvenience to an adjoining owner. In consideration of the above, as with all work affecting neighbours, it is always better to reach a friendly agreement rather than resort to any law. Even where the work requires a notice to be served, it is better for John to informally discuss the intended work, consider Robert's comments, and amend the plans before serving the notice. At this point, written notice from John as well as a written consent from Robert may still be necessary. When consent has been obtained from Robert, John may proceed with his improvisation plans without bringing a burden on both himself and his neighbour Robert. References Covenant. (n.d.). Retrieved July 25, 2006 from http://encyclopedia.jrank.org/COR_CRE/COVENANT.html Lateral Support. (n.d.) Retrieved July 25, 2006 from http://www.legal-explanations.com/definitions/lateral-support.htm NFHiB Law & Legislation: Party Wall Act 1996. (n.d.). Retrieved July 25, 2006 from http://www.nfh.org.uk/law/party_wall%20_act_1996/index.php Real Property. (n.d.). Retrieved July 25, 2006 from http://www.lectlaw.com/def2/q013.htm The Party Wall Etc Act 1996: Explanatory Booklet (n.d.). Retrieved July 25, 2006 from http://www.communities.gov.uk/index.aspid=1131406#TopOfPage Tree Preservation Orders. (n.d.). Retrieved July 25, 2006 from http://www.planningni.gov.uk/Devel_Control/info_leaflets/TPO/tpo.htm#Questions%20and%20Answers Read More