The Owner of Roseland - Jean - Essay Example

Jean, owner of Roseland, an unregistered land, is asked to take out her four horses from Redfield, her goats from registered land wasteland and to relocate the fence on boundary of Clover cottage. The advice to Jean tends to explore Jeans legal options such as horses grazing rights or profit a pendre with reference to case law and a possible course of action. Distinction between easement and profit a prendre should be made from the beginning to avoid any confusion. An easement is a right for one landowner to do something or to prevent a neighbor from doing something on the neighbors own land such as right of way, right of light and right of support. A profit à prendre is the right to go on to someone elses land and acquire natural materials from it and include the right to mine, quarry, fish, and hunt, graze animals or cut turf (Mackenzi, 2004). It is important for Jean to understand that order to ascertain whether there is a profit a prendre, it is not necessary to show that the relevant right that has been granted gives an appreciable benefit to the dominant land. Gale (2002) suggests that the question of whether a right can be a profit depends upon the nature of the right and its relevance to the dominant land. Profit of pasture is an ancient right but still generally claimed today. It is a profit because grazing animals take grass and other plants from the land. This cannot exist as a right to graze an unlimited number of animals as this would wear out a land, and the traditional limit is the maximum number of animals which can be supported through the winter, as mentioned in Mellor v Spaleman, 1669, (Mackenzi, 2004). Unlike an easement, a profit may not be appurtenant to land, in which case it may be exercised for personal benefit of its owner. Profit appurtenant can change character. Bettison v Langton, 2001, is the authority of the rule. (Mackenzi, 2004). In the unregistered land system, a legal profit is enforceable against any purchaser, under the principle that legal rights bind the whole world. However equitable profit has to be registered as a charge though some passages in E. R. Ives Investment v High, 1967, suggest that some equitable profits may be enforceable without registration. (Mackenzi, 2004). And in Carr v Lambert 1866, 1 Ex 168, 175 levancy and couchancy was described as a "measure of the capacity of the land to keep cattle out of artificial or natural produce grown within its limits". Gray and gray (2002) suggest that profits à prendre can be obtained by agreement between two respective landowners or can be created by statute. They could also be acquired at common law by long use called prescription or under a principle of lost modern grant. The system for the acquisition of these rights were previously governed by the complicated provisions of the Prescription Act, 1832. The 2009 Act simplifies greatly the procedure for the acquisition of these rights. Both prescriptions at common law and under the doctrine of Lost Modern Grant have been abolished by the 2009 Act. Since 1 December 2009, profit à prendre can only be obtained by long use if the person claiming the easement or profit obtains a court order and registers this in the Registry of Deeds or Land Registry as appropriate. However, landowners who would have acquired easements or profits à prendre through long use will need to act promptly to protect any interest they have acquired if they do not wish to lose it. The coming into force of the 2009 Act could also be of significant importance to landowners who had not achieved their profit à prendre under the Prescription Act. Previously, the period to claim an easement or profit à prendre would be at least 20 years and could extend up to 60 years, depending on the right being claimed. Under the 2009 Act, this has now been standardized to a fixed period of 12 years. Therefore, any person who has enjoyed the advantage of an easement or profit à prendre with a relevant user period will be at liberty to apply to the court to obtain an order confirming this right. Relevant user period means a period of user as of right without disruption by the person claiming to be the owner of the land over which profit is used for a minimum period of 12 years, starting on 1 December 2009. User as of right means use without force or secrecy and without the oral or written approval of the landowner and interruption means interference with or cessation of the use of an easement or profit à prendre for a continuous period of at least one year. The only exceptions to this 12-year episode are if the owner of the land in question is the State, for which a user period of 30 years is the least period required, or where the land in question is foreshore, where a minimum period of 60 years is required. Significantly, however, the 2009 Act will not apply to a claim based on a user period under the Prescription Act unless an action to obtain and register a court order confirming the right is not brought within three years of 1 December 2009. If it is not, then the relevant user period must be acquired from 1 December 2009 as the rights acquired will have been gone and will not be reacquired until 2021 at the very earliest. The 2009 Act presents an opportunity to land owners to obtain profits à prendre in a much shorter period of time than was previously the case. However, those who have already obtained the rights through long use will need to act promptly to make certain that their rights are registered within the three-year window from 1 December 2009, otherwise they will lose their acquired benefit. Similarly, landowners will need to be aware that easements and profits à prendre that could significantly impact on the value of their property can be obtained in a much shorter period of time than was previously the case and may have to take appropriate action to ensure that such rights are not acquired. What are the options available to Jean? Taking a request of deciding boundary to a Court will consume disproportionately large amounts of time and money, so it is more usual to turn to a suitable boundary surveyor for a judgment as to exactly where the boundary is located. Such a professional, particularly one who has experience of giving evidence in court, is likely to recognize a position for the boundary that can be relied upon. The complexity with obtaining a professional opinion is that the stress is on the word opinion rather than on the word professional, and in law an opinion can always be argued against. So even if Jeans acquire the opinion of the countrys most respected boundary demarcation and disputes expert, if the neighbor sees things in a different way from her then she will be incapable to impose her experts professional opinion on her neighbor. The Ordnance Survey map is a map of the physical features encountered on the land by Ordnance Surveys surveyors. It is a map made without any enquiry as to the positions of property margins. It cannot however be a definitive map of property boundaries. Land Registry is careful to reveal that its title plans, based as they are on Ordnance Survey maps, show the general positions of the boundaries of registered land. Jean has the following options in case she wants to maintain her horses grazing. There are many instances in which horse owners would like to take grazing, but Land owners are hesitant to enter into an agreement that may constitute a tenancy. The following arrangements can provide a solution tolerable to both Jean and landowners in these circumstances: She can have an agreement in form of license. Smith & Francis (2000) suggest that a license is a simple form of agreement between landowner and horse owner permitting the horse owner non-exclusive use of the land for grazing. From a landowner’s perspective the use of the license may be better restricted to situations where the arrangement between landowner and horse owner is likely to be of short period and relates to the grazing of private recreational horses only. The landowner will wish to guarantee that there is no risk of a license being construed, in the event of a dispute, by the courts as a tenancy. If a tenancy is found to exist rights may be conferred on the horse owner which the landowner never planned the horse owner should have the benefit of. The risk to the landowner is avoided if, the license agreement does not use the language of landlord and tenant ,such as the use of expressions such as ‘rent’, the license agreement does not impose obligations on the horse owner which are of a type that would be forced on a tenant under a tenancy. For example, an obligation on the part of a horse owner for hedging and ditching, maintenance and repair of fences could be indicative of a tenancy existing rather than a license. The license should be a written agreement clearly setting out the following facts: the name and address of both the landowner and the horse owner, the license fee to be paid by the horse owner, and when that fee is due, the area of the land covered by the license (preferably by reference to a plan, a provision that the horse owner has the consent of the landowner to use the land for grazing. (From the landowner’s perspective it is best to make it clear that this is not an exclusive right of the horse owner), clearly projecting the period for which the license will last. 2nd option is Profit á Prendre . A Profit á Prendre may be documented very plainly; no tenancy of land arises. This can be an attractive alternative to a landowner as the landowner is treated as remaining in custody of the land and remains free to exercise all rights over the land that are not incoherent with the right of pasturage granted to the horse owner. Furthermore, landowners would be treated (commonly for tax reasons) as continuing to farm the land (i.e. by the growing of a crop of grass on the land). Third option is through agistment. Zift and Litman (1998) recommend that this is an agreement whereby a landowner agrees to let in horses to graze on the landowner’s land in return for a fee. The horse owner attains no tenancy in respect of the landowner’s land and no part of the landowner’s land is selected specifically for the purposes of the arrangement. Typically under a contract of agistment the horses are returnable to the horse owner on claim. The landowner will want to provide in a contract of agistment that he has a lien on the horses until any monies owing under the contract are compensated (failing which the landowner will be entitled to retain a horse or horses until the horse owner has paid his debt to the landowner). In order to maintain grazing rights for her horses and goats Jean can use one of the suggested options. However in case of relocating the fence Jean can rely on the opinion of a surveyor and estate agent’s words. But they are less likely to assist her out against her neighbor’s words and a map showing the boundary of the cottage. References Smith & Francis,2000. Rights of Life: The Modern Law, UK. Gale,2002. Easements, 17th edn., 2002, Sweet & Maxwell:UK. Gray and Gray, 2002. Elements of Land law, 3rd edn. Butterworths, pp. 476-81. Land Registry, 2009.UK, London, accessed 4 December 2011, . Mackenzi ,2004. Land Law, 10th edn. Oxford:Oxford university Press. Zift and Litman, 1998. ‘Easements and Possession: An Elusive limitation’. Conveyance and Property Lawyer, 296. Read More