Easement Law Issues - Case Study Example

Easement Law An easement may be said to be the right of one landowner to “make use of another nearby piece of land for the benefit of his own land.”1 In most cases, it is equivalent to the right of way to the dominant land which in this case would be Alison’s land over the “appurtenance” or the unmetalled land which is present upon the servient land that in this case, will be the land that Major Phelps has newly acquired. An easement is a right of way designated for a specific purpose and it does not interfere in any way with the servient property owner’s rights over his land, it is merely a permanent and/or proprietary interest held by someone else over that easement and is an appurtenant, incidental to the land in question. An easement is therefore an interest in the land which will continue even if ownership of the land changes.2 In the dispute that is at issue between Alison and Major Phelps, one of the major factors that must be borne in mind is that Alison is the freehold, registered owner of the land upon which the cottage stands and that the unmetalled road is the only way for her to get to her cottage. The first issue to be tackled is Major Phelps’ contention that no express grant to Alison exists. An express grant is generally acquired through a written document, which in this case is likely to be Alison’s deed which indicates that she is the owner of the cottage, having inherited it from her parents. Major Phelps contends that no evidence exists. According to the Land Registration Act of 2002; “No easement expressly granted out of registered land from 13 October 2003 can ever override.”3 This places a restriction on overriding interests arising out of easements, such as that Alison possesses over the unmetalled road. However, the restriction on the overriding interest only pertains to that granted out of registered land such as Major Phelps’ from 13th October 2003 and does not apply to easements that have existed before that. Before the Land Registration Act of 2002, equitable easements were deemed to automatically enjoy a binding status as overriding interests.4 This has also been upheld by the Courts in several cases, such as for example that of Celsteel v Alton House Holdings5. This overriding interest has been overruled by the Land Registration Act of 2002. However, Mr. Phelps’ contention that Alison does not enjoy an overriding interest by virtue of an express trust is not likely to hold good because the LRA 2002 makes it clear that an overriding interest which existed before October 13, 2003 will continue to enjoy the privilege of an overriding interest.6 Moreover, it may also be noted that the restrictions placed by the LRA 2002 only pertain to equitable interests, however it may be argued that Alison has a legal right rather than an equitable one, due to the fact that she is the freehold owner of the cottage. Moreover, she is the registered owner, which means that for the purposes of the LRA 2002, she is in possession of a written document that designates her as the owner of the cottage, therefore she is well within her legal rights and her interests on the easement cannot be overridden. Major Phelps also contends in his letter that no right of way is registered in the charges register of his title. In most cases, the validity of rights over an easement and the right of way will be determined by the Courts based upon the manner in which it is written into the agreement and the principles governing the creation of an easement are set out in the case of Re Ellenborough Park.6 Possibly, Alison’s parents and the previous owner of Major Phelps’ property did not set it out in writing that the right of way would be allowed. However, an express trust is not the only means to create a right of way, this could also occur as an “implied” grant wherein a quasi easement may be said to exist, based upon the intention of the parties. The rules that would determine the existence of an implied grant were laid out in the case of Wheeldon v Barrows, in which Thesiger LJ stated: "...on the grant by the owner of a tenement of part of that tenement as it is then used and enjoyed, there will pass to the grantee all those continuous and apparent easements…….. necessary to the reasonable enjoyment of the property granted…”7 According to Graham Ferris, this case therefore sets out two tests to determine whether an implied grant exists (a) the continuous and apparent test and (b) the “necessary to reasonable enjoyment” test.8 In this case, this will mean that the previous owner of Sunburst House had permitted Alison’s parents to use the road without ever contesting their right to use it and therefore the inference that may be drawn is that he did not object to it. Therefore, Prescription will arise in this case and since the previous owner has not voiced his objection, the same principle will hold good with successive owners in spite of the fact that no written clause exists specifying this aspect. Since Alison’s parents bought the house in 1945 and have had no problems in using the road, a Court would be likely to conclude an implied grant of permission or that the formation of a quasi easement had occurred through the continuous use of the road and the fact that it was also necessary to access the cottage. In fact, where no register entries are made, the benefit of all interests subsisting for the benefit of an estate for a registered proprietor will pass on to successive registered proprietors.9 The concept of “continuous” as applied to the use of a worn track or unpaved road as in Alison’s case was established in the case of Hansford v Jago.10 Moreover, Major Phelps has also tried to prevent Alison driving on the road on the grounds that it is a crime to drive over land which is not a road under section 34 of the Road Traffic Act of 1988. However, in this context, the Land Registration Act of 2002 clarifies that this offense is “only committed if driving over the land is ‘without lawful authority.”11 But since Alison, having succeeded the registered owner of the cottage, has enjoyed right of way on a continuous basis, she can put forth her right to use the road and driving her car on the road is only an exercise of that right. The Latin principle of nec vi, nec clam, nec precario can be invoked here so show that Alison has exercised her right not by force, not secretly and not with permission. She can reply upon the Prescription Act of 1832 to substantiate the exercise of her right to use the road. This Act provides for the fact that the user of an easement as of twenty years without interruption will defeat any common law defense that could provide any opposition to his right to use the easement12. However, this period of twenty years should have been an uninterrupted period before the onset of the dispute and if there have been interruptions in possession, then the provisions of the Prescription Act will not apply. On examination of this case, it may be noted that Major Phelps has been the owner of Sunburst House for only two months. Since 1945 up to the present time, Alison has enjoyed continued use of the road, first through her parents and even after she has become the owner. The lack of written permission from the National park Authority is not relevant in this case either, because as clearly set out by the Land registration Act, such presumed violations of Government statues can only become an issue when the question of ‘lawful authority’ arises. 13 Since Alison’s parents and then Alison herself have been using the road for several years without any objection whatsoever from the National Park authorities, her exercise of her right to use the road is undisputed and inviolate. There is also no issue here of public disturbance or any other pressing issue that could pose an objection to Alison’s use of the road. Thus, it is only Major Phelps’ opposition to her driving through his property which is at issue here. Therefore, Major Phelps is definitely not within his rights to prevent her from driving over the pathway on any of the grounds that he has cited in his letter and would need to remove the lock on the gate immediately and permit Alison free passage on the road without the imposition of any conditions. On the contrary, Major Phelps may himself be liable if he is deemed to be unlawfully interfering with an easement. He is seeking to extinguish an easement, however an easement may be extinguished only “by statute, by express release and by implied release.”14 When an easement exists, there is a distinct proprietary interest which also exists on the easement and it may need to be protected through a notice on the register of title, in such a case it can be enforceable against a purchaser of the reversion.15 However, the issue that will arise in this case is that since Major Phelps will be viewed as the grantor of the original easement by virtue of the fact that the previous owners permitted Alison’s parents to use it freely without protest, the validity of the right to use the easement is established and any attempt now made by the present owner of Sunburst House to wrongly interfere with it could make him liable, unless a statute exists that expressly or through implication authorizes his interference with the easement. The fact that Alison does not have consent in writing from the National park Authority when the bye laws have been enacted as far back as 1970 without any problems created thus far, hardly constitutes a statute that expressly authorizes the interference of the owner of Sunburst House with an easement he has himself granted. In fact, the test for extinguishment of an easement would be “whether there is no longer any practical possibility of the easement, the covenanted right, ever again benefiting the dominant tenement in the manner contemplated by the grant.”16 This is obviously not the case, since the easement still benefits the dominant owner – Alison in the manner which was intended, therefore there are no grounds at all for extinguishment of the easement. However, the situation will be somewhat different if Alison’s cottage had actually belonged to the then owners of Sunburst House. At the outset, it must be stated that Alison’s rights to use the easement will not be affected and Major Phelps will probably not be able to prevent her use of it. In the case of Hair v Gillman (2000)16a an owner who allowed a tenant to use a car parking spot on his property. When he sold his property, the new owner objected to the tenant parking on his land, but the Court stated that under the LPA16b an easement had been created, thereby giving her a permanent right to park on the property. Applying this principle in Alison’s case, her regular use of the road will therefore comprise an easement and she may well enjoy permanent rights to use the road. However, the difference that will arise if the owners of Sunburst House had also owned the cottage will be in the degree to which Major Phelps can cause an obstruction to Alison’s use of the road. For one thing, it will become more difficult for Alison to establish that there is an implied grant of easement, since the property has belonged to Sunburst House and has not been signed over in the deed to her. As Major Philips has indicated, there is no indication of an express trust, which means nothing has been put down in writing. As Graham Ferris points out, the second principle laid out in Wheeldon v Burrows17 test for an implied grant is not clearly defined18 and in the case of Wheeler v Saunders , the Court held that the implied trust requirement had not been met.19 This means that if the owner of Sunburst House can establish that inspite of the fact that the previous owners had not interfered with the use of the easement, the denial of the use of a car does not necessarily constitute interference with the easement, he may be able to achieve his ends. He will have to demonstrate that his locking the gate to the use of a car is not necessarily a restriction on Alison’s “enjoyment of the land.” For example, he could then contend that Alison could use an alternative means of transport such as a bicycle, therefore he would not be interfering with her reasonable enjoyment, in accordance with the precedent established in Wheeler. In this instance, he will be able to contest Alison’s ‘lawful authority’ to use her car on the road, as laid out in the Land Registry Practice Guide 52, since the road in effect, would have been the property of Sunburst House for a long time. He will be in a better position if the owners of Sunburst House were the owners of the cottage instead of the other way around, since Alison’s exercise of her right to use the property arises out of the Prescription Act of 1832, and when she has been the owner all along, except for the last two months, her rights to unrestricted use of the easement will predominate, since the previous owner did not object to the use of the easement. However, it is possible that if the owners of Sunburst House had owned the cottage as well, they could have objected to the use of the road much earlier, in which the validity of the application of the Prescription Act would be affected and thereby Alison or her parents may not have been able to satisfy the 20 year unobstructed use requirement. Moreover, another aspect that must be considered is the fact that according to Section 7 of the Vehicular Access across Common and other Land (Wales) regulations, Alison would have had to submit an application for the use of the easement and receive a signed note of no objection form the owners. Since Alison has no such document in her possession and presumably, the previous owners could have created problems and not provided any such written no-objection, Alison’s claim would have been weakened on the whole. Bibliography Books: * Halsbury’s Laws of England. Easements and Profits a prendre (4th edn). * Meggary and Wade, Law of real property 6th edn, Sweet and Maxwell, pp 1143 * Sexton, Roger, 2004. Land Law Textbook Oxford University Press Article: * Ferris, Graham J, 1996. Problems postponed: The rule in Wheeldon v Burrows and Wheeler v Saunders The Web Journal of Current Legal issues. [online] available at: http://webjcli.ncl.ac.uk/1996/issue3/ferris3.html Legislation: * Law of Property Act of 1925 * Land registration Act of 2002 * Prescription Act of 1932 * Section 15(5) of the Landlords and Tenant ( Covenants Act) of 1995 * Vehicular Access across Common and other Land (Wales) regulations Cases: * Celsteel v Alton House Holdings (1985) 1 WLR 204 * Hair v Gillman 2000] 80 P & CR 108 * Hansford v Jago (1921) 1 Ch 322 * Re Ellenborough Park (1956) Ch 131, per Danckwerts J * Wheeldon v Burrows (1879) 12 Ch D 31. * Wheeler and Another v JJ Saunders Ltd and Others (1995) 2 All ER 697 RESEARCH TRAIL: SEARCH STRATEGY: 1. My first step was to read text books to learn about easements and their operations. Meggary and Wade provided indications of formation of easement in the case of Re Ellenborough park and how it might apply to roads in Hansford v Jago. I then conducted a search on bailii.org and typed in “easement” as my search word. I found relevant legislation including vehicular regulations and the Prescription Act of 1832, apart from the most important Act of all which I examined in detail – the Land Registration Act of 1932.. 2. My next step was to run a search on Weekly Law reports, using the same key word “easement”. I was able to pull up several cases, of which I rejected several because they had to do with leaseholds while Alison’s case is a freehold. 3. Finally I conducted a search on Weekly law Reports to see if I could pull up any relevant journal articles on easements and found one by Graham Ferris on the principle of quasi easements laid out in the case of Wheeldown v Burrows. -------------------------------------- 1. Search of Bailii.org for general legislation which will apply: [Home] [Databases] [World Law] [Search] [Help] [Feedback] Top of Form Find Bottom of Form You are here: BAILII >> Search results Searching for: easement ( all words ) Repeat search over: WorldLII databases : WorldLII web search : Google Total documents found in BAILII databases: 848 1. Nationwide Building Society v. Walter D Allan Ltd [2004] ScotCS 198 (04 August 2004) [100%] (From Scottish Court of Session Decisions; 48 KB) 2. McAdams Homes Ltd. v Robinson & Anor [2004] EWCA Civ 214 (27 February 2004) [100%] (From England and Wales Court of Appeal (Civil Division) Decisions; 80 KB) 3. FORESTRY ACT 1946 - SECT 19 Extinguishment of easements. [100%] (From Irish Legislation; 7 KB) 4. CONVEYANCING ACT 1881 - SECT 62 Grants of easements, &c., by way of use. [100%] (From Statutes of Northern Ireland; 2 KB) 5. PARTY WALL ETC. ACT 1996 - SECT 9 Easements. [100%] (From United Kingdom Legislation; 2 KB) 6. The Vehicular Access Across Common and Other Land (Wales) Regulations 2004 No. 248 [100%] (From Statutory Instruments made by the National Assembly for Wales; 20 KB) 7. Commission v France (EAEC) [2004] EUECJ C-177/03 (09 December 2004) [100%] (From Court of Justice of the European Communities (including Court of First Instance Decisions); 33 KB) 8. LAND LAW (IRELAND) ACT 1896 - SECT 34 As to easements, &c., when vesting order is made. [96%] (From Statutes of Northern Ireland; 3 KB) 9. Bakewell Management Ltd v. Brandwood & Ors [2004] UKHL 14 (1 April 2004) [91%] (From United Kingdom House of Lords Decisions; 65 KB) 10. WILDLIFE (AMENDMENT) ACT 2000 - SECT 13 Extinguishment of easements. [90%] (From Irish Legislation; 3 KB) 11. Reform and Modernisation of Land Law and Conveyancing Law, Consultation Paper on (LRC CP 34-2004) [2004] IELRC 7 (October 2004) [88%] (From Irish Law Reform Commission Papers and Reports; 1816 KB) 12. DEFENCE OF THE REALM (ACQUISITION OF LAND) ACT 1920 - SECT 6 Easements. [88%] (From Statutes of Northern Ireland; 2 KB) 13. CRIMINAL JUSTICE ACT 1988 (C. 33) - SECT 167 Acquisition of easements etc. under Prison Act 1952. [88%] (From United Kingdom Legislation; 2 KB) 14. WILDLIFE ACT 1976 - SECT 61 Extinguishment of easements. [86%] (From Irish Legislation; 3 KB) 15. LLOYDS SIGNAL STATIONS ACT 1888 - SECT 4 Power to take easements by agreement. [86%] (From Statutes of Northern Ireland; 3 KB) 16. RAILWAYS CLAUSES ACT 1863 - SECT 10 Company to acquire only easements in land of other railway company. [86%] (From Statutes of Northern Ireland; 2 KB) 17. Moncrieff & Anor v. Jamieson & Ors [2005] ScotCS CSIH_14 (04 February 2005) [85%] (From Scottish Court of Session Decisions; 108 KB) 18. Selby District Council v Samuel Smith Old Brewery (Tadcaster) [2000] EWCA Civ 182 (26 May 2000) [85%] (From England and Wales Court of Appeal (Civil Division) Decisions; 46 KB) 19. LAND ACT 1939 - SECT 41 Extinguishment of easements, rights and tenancies. [84%] (From Irish Legislation; 3 KB) 20. Green v Lord Somerleyton & Ors [2003] EWCA Civ 198 (28 February 2003) [82%] (From England and Wales Court of Appeal (Civil Division) Decisions; 107 KB) 21. FORESTRY ACT 1956 - SECT 5 Creation of new easement. [82%] (From Irish Legislation; 2 KB) 22. HOUSING ACT 1966 - SECT 83 Extinguishment of ways, easements, etc. [80%] (From Irish Legislation; 3 KB) 23. PRESCRIPTION ACT 1832 - SECT 2 In claims of rights of way or other easements the periods to be twenty years and forty years. [80%] (From Statutes of Northern Ireland; 3 KB) 24. TOWN AND COUNTRY PLANNING ACT 1990 (C. 8) - SECT 237 Power to override easements and other rights. [80%] (From United Kingdom Legislation; 5 KB) 25. Land Registration For The Twenty-First Century: A Conveyancing Revolution (Report) [2001] EWLC 271(Appendix_A) (9 July 2001) [79%] (From The Law Commission; 860 KB) 26. Arena Property Services Ltd. v Europa 2000 Ltd. [2003] EWCA Civ 1943 (24 November 2003) [79%] (From England and Wales Court of Appeal (Civil Division) Decisions; 29 KB) 27. Transco Plc v. Stockport Metropolitan Borough Council [2003] UKHL 61 (19 November 2003) [79%] (From United Kingdom House of Lords Decisions; 131 KB) 28. Land Registration For The Twenty-First Century: A Conveyancing Revolution (Report) [2001] EWLC 271(8) (9 July 2001) [77%] (From The Law Commission; 184 KB) 29. Rule against Perpetuities and Cognate Rules, Report on the (LRC 62-2000) [2000] IELRC 3 (1st December, 2000) [77%] (From Irish Law Reform Commission Papers and Reports; 351 KB) 30. Hunter and Others v. Canary Wharf Ltd; Hunter and Others v. London Docklands Corporation [1997] UKHL 14; [1997] AC 655; [1997] 2 All ER 426; [1997] 2 WLR 684; [1997] 2 FLR 342; [1997] Fam Law 601 (24th April, 1997) [77%] (From United Kingdom House of Lords Decisions; 158 KB) 31. Vehicular Access Across Common and Other Land (England) Regulations 2002 [77%] (From United Kingdom Statutory Instruments; 20 KB) 32. HOUSING (MISCELLANEOUS PROVISIONS) ACT 1931 - SECT 18 Extinguishment of ways, easements, etc. [76%] (From Irish Legislation; 3 KB) 33. LOCAL GOVERNMENT (IRELAND) ACT 1898 - SECT 10 Powers of county council as to acquisition of land or easements. [75%] (From Statutes of Northern Ireland; 2 KB) 34. Director of Public Prosecutions v. Jones and Another [1999] UKHL 5 (11th February, 1999) [75%] (From United Kingdom House of Lords Decisions; 152 KB) 35. Commission v Ireland (Taxation) [2000] EUECJ C-358/97 (12 September 2000) [75%] (From Court of Justice of the European Communities (including Court of First Instance Decisions); 42 KB) 36. Albore (Free movement of persons) [2000] EUECJ C-423/98 (13 July 2000) [75%] (From Court of Justice of the European Communities (including Court of First Instance Decisions); 16 KB) 37. FINANCE ACT 1963 - SECT 88 Taxation of certain payments in respect of easements. [73%] (From Irish Legislation; 2 KB) 38. Beresford, R (on the application of) v. City of Sunderland [2003] UKHL 60 (13 November 2003) [73%] (From United Kingdom House of Lords Decisions; 93 KB) 39. Hillman & Anor v Rogers & Anor [1997] EWCA Civ 3069 (19th December, 1997) [72%] (From England and Wales Court of Appeal (Civil Division) Decisions; 80 KB) 40. Kent & Anor v Kavanagh & Anor [2006] EWCA Civ 162 (02 March 2006) [72%] (From England and Wales Court of Appeal (Civil Division) Decisions; 88 KB) 41. INCOME TAX ACT 1967 - SECT 87 Taxation of certain payments in respect of easements. [72%] (From Irish Legislation; 2 KB) http://www.bailii.org/cgi-bin/markup.cgi?doc=/wales/legis/num_reg/2004/20040248e.html&query=easement&method=all 2004 No. 248 (W.25) COUNTRYSIDE, WALES The Vehicular Access Across Common and Other Land (Wales) Regulations 2004   Made 4th February 2004     Coming into force 9th February 2004   The National Assembly for Wales makes the following Regulations in exercise of the powers conferred on it by section 68 of the Countryside and Rights of Way Act 2000[1] and all other powers enabling it in that behalf: Citation, commencement and extent      1.  - (1) These Regulations may be cited as the Vehicular Access Across Common and Other Land (Wales) Regulations 2004 and come into force on 9th February 2004.     (2) These Regulations apply to land in Wales.     (3) For the purposes of paragraph (2), "land" means any land which is crossed by a way used as a means of access for vehicles to premises. Interpretation      2.  - (1) In these Regulations -  "the Act" means the Countryside and Rights of Way Act 2000; "the applicant", "the land" and "the land owner" have the meanings given in regulation 3(2); "compensation sum" means the amount of compensation payable by the applicant; "easement" means an easement subsisting at law for the benefit of the premises and giving a right of way for vehicles; "the parties" means the applicant and the land owner and "party" is to be construed accordingly; "the premises" means the premises served by the way in respect of which an application for an easement is made; and "the value of the premises" has the meaning given in regulation 11(4).     (2) Any reference in these Regulations to a numbered regulation is to be construed as a reference to the regulation so numbered in these Regulations. Entitlement to make an application      3.  - (1) An owner of any premises may, as respects a way to which section 68 of the Act applies, apply for the creation of an easement in accordance with these Regulations.     (2) For the purposes of these Regulations, the owner who makes an application is referred to as "the applicant", the land crossed by the way is referred to as "the land" and the person who, for the time being, has the freehold title to the land, is referred to as "the land owner". Prescribed date      4. The prescribed date for the purpose of section 68(1)(b) of the Act is 5th May 1993. Nature of easement      5. An easement created in accordance with these Regulations will -  (a) be subject to any limitation agreed by the parties or determined by the Lands Tribunal; (b) include any right incidental to the right of way agreed by the parties or determined by the Lands Tribunal; and (c) be subject to any rule of law which would apply to the easement had it been acquired by prescription. Procedure for making an application      6.  - (1) An application for the easement must be made by the applicant serving a notice on the land owner.     (2) The application must be served within 12 months of the date on which these Regulations come into force or, if later, the date on which the relevant use of the way has ceased.     (3) The application must contain the information specified in paragraph 1, and be accompanied by the information specified in paragraph 2, of the Schedule to these Regulations. Unopposed applications      7.  - (1) Where the land owner does not object to the application, the land owner must, within three months of receipt of the application, serve a notice on the applicant, agreeing to the application.     (2) The notice must contain the following information -  (a) the name and address of the land owner and a description of the land owners interest in the land; and (b) a statement confirming that, upon payment of the compensation sum, the land owner will provide a written receipt.     (3) The notice must be accompanied by evidence of the land owners title to the land. Opposed applications      8.  - (1) Where the land owner has objections to the application, the land owner must, within three months of receipt of the application, serve a notice (a "counter notice") on the applicant, objecting to the application.     (2) Objections to the application may be made on the following grounds -  (a) the applicant has served the application after the expiry of the period for service; (b) the applicant has not provided the information required by regulation 6(3); (c) information provided by the applicant is not correct; (d) the easement should be subject to limitations other than those (if any) described in the application; (e) any rights incidental to the right of way, which are described in the application as being rights which should be included in the easement, are not agreed; (f) the value of the premises is not agreed.     (3) The counter notice must contain the following information -  (a) the name and address of the land owner and a description of the land owners interest in the land; (b) the objections to the application; and (c) any alternative proposals.     (4) The counter notice must be accompanied by -  (a) any evidence relevant to the objections and alternative proposals; and (b) evidence of the land owners title to the land. Amended application and amended counter notice      9.  - (1) Within two months of receipt of a counter notice, the applicant may serve on the land owner an amended application addressing the objections and any alternative proposals set out in the counter notice.     (2) An amended application must contain the information specified in paragraph 1 of the Schedule to these Regulations and must be accompanied by any evidence relevant to the applicants response to the objections and any alternative proposals set out in the counter notice.     (3) Where the applicant has served an amended application on the land owner, the land owner must, within two months of receipt of the amended application -  (a) serve a notice on the applicant agreeing to the amended application and confirming that upon payment of the compensation sum the land owner will provide a written receipt; or (b) serve an amended counter notice on the applicant objecting to the amended application.     (4) An amended counter notice must comply with regulation 8(2), (3) and (4)(a) and, for this purpose  -  (a) references in regulation 8(2) and (3) to the application, except for the reference in sub-paragraph (a) of regulation 8(2), are to be treated as references to the amended application; and (b) an objection may also be made on the ground that the applicant has served the amended application after the expiry of the period for service or has not provided the information required by paragraph (2) of this regulation.     (5) Where the land owner has served an amended counter notice on the applicant, the applicant may, within two months of receipt of the amended counter notice, serve a notice on the land owner agreeing to the amended counter notice. Lands Tribunal      10.  - (1) Where a counter notice has been served, either party may, where there is a dispute relating to any matter other than the value of the premises, request the Lands Tribunal to determine the matter in dispute by sending a notice of reference to the Lands Tribunal in accordance with the Lands Tribunal Rules 1996[2].     (2) The notice of reference must have annexed to it -  (a) the application; (b) the counter notice; and (c) if applicable, the amended application and amended counter notice. Calculation of the compensation sum      11.  - (1) Subject to paragraph (2), the compensation sum is to be 2 % of the value of the premises.     (2) Where the premises were in existence on -  (a) 31st December 1905; or (b) 30th November 1930, the compensation sum is to be 0.25 % or 0.5 % of the value of the premises respectively.     (3) Where the premises are in residential use and replaced other premises on the same site which were also in residential use ("the former premises"), the compensation sum is to be calculated in accordance with paragraph (2) by reference to the date on which the former premises were in existence.     (4) For the purposes of these Regulations, the value of the premises is to be calculated as at the valuation date on the basis of the open market value of the premises with the benefit of the easement.     (5) In paragraph (4), the "valuation date" means the date as at which the premises are valued for the purposes of the application, being a date no more than 3 months before the date on which the application is served. Determination of the compensation sum in default of agreement      12.  - (1) Where no agreement can be reached on the value of the premises, either party may serve on the other a notice (the "valuation notice") requiring the amount to be determined by a chartered surveyor.     (2) Where a valuation notice has been served, the appointment of a chartered surveyor must be agreed by the parties within one month of the service of the valuation notice and, where agreement on such appointment cannot be reached, either party may request the President of the Royal Institution of Chartered Surveyors to appoint a chartered surveyor.     (3) Where a chartered surveyor has been appointed in accordance with paragraph (2), the following provisions apply as appropriate -  (a) where the appointment has been made by the President of the Royal Institution of Chartered Surveyors, the parties are to be equally liable for the costs of that appointment; (b) unless the parties agree that the chartered surveyor is to act as an independent expert, the surveyor will act as an arbitrator and the provisions of the Arbitration Act 1996[3] apply; and (c) where the chartered surveyor acts as an independent expert -  (i) the parties will be bound by the chartered surveyors final decision; and (ii) each party must bear their own costs and be equally liable for the fees and costs of the chartered surveyor. Payment of the compensation sum      13.  - (1) Where -  (a) the land owner has notified the applicant in accordance with regulation 7 or 9(3)(a); (b) the applicant has notified the land owner in accordance with regulation 9(5); or (c) any matters in dispute have been determined in accordance with regulation 10 or 12, the applicant must pay the compensation sum to the land owner.     (2) The compensation sum must be paid within two months of -  (a) the date of notification under regulation 7 or paragraph (3)(a) or (5) of regulation 9, as the case may be; or (b) where a determination is made under regulation 10 or 12, the date of the determination or, if more than one such determination is made, the date of the last determination.     (3) The land owner must, within one month from the date of receipt of the compensation sum, provide the applicant with a written receipt for that sum. Payment into court      14. Where -  (a) the land owner does not serve a notice in accordance with either regulation 7 or 8; or (b) the applicant has served an amended application on the land owner and the land owner fails to act in accordance with regulation 9(3), the applicant may, within two months of the expiry of the period for service of a notice under regulation 7, 8 or 9(3), as the case may be, pay the compensation sum into a county court in accordance with the Court Funds Rules 1987[4]. Creation of the easement      15. Upon payment of the compensation sum either -  (a) to the land owner in accordance with regulation 13; or (b) into court in accordance with regulation 14, the easement is created. Notices      16.  - (1) A notice under these Regulations must be in writing and may be served by sending it by post.     (2) Where any notice is required by these Regulations to be served within a specified period, the parties may, except in the case of an application, agree in writing to extend or further extend that period. Abandonment etc. by applicant      17. Where the applicant withdraws or otherwise fails to continue with the application at any stage, the applicant will be liable for the reasonable costs incurred by the land owner. Signed on behalf of the National Assembly for Wales under section 66(1) of the Government of Wales Act 1998[5]. D. Elis-Thomas The Presiding Officer of the National Assembly 4th February 2004 ------------------------------------------------------------- [Home] [Databases] [World Law] [Search] [Feedback] Northern Irish Legislation You are here:  BAILII >> Databases >> Northern Irish Legislation >> PRESCRIPTION ACT 1832 [Index] [Table] [Search] [Notes] [Noteup] [Previous] [Next] [Download] [Context] [Help] PRESCRIPTION ACT 1832 - SECT 2 In claims of rights of way or other easements the periods to be twenty years and forty years. 2. No claim which may be lawfully made at the common law, by custom, prescription, or grant, to any way or other easement, or to any watercourse, or the use of any water, to be enjoyed or derived upon, over, or from any land or water of our said lord the King, ... or being the property of any ecclesiastical or lay person, or body corporate, when such way or other matter as herein last before mentioned shall have been actually enjoyed by any person claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter was first enjoyed at any time prior to such period of twenty years, but nevertheless such claim may be defeated in any other way by which the same is now liable to be defeated; and where such way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that purpose by deed or writing. [Index] [Table] [Search] [Notes] [Noteup] [Previous] [Next] [Download] [Help] 2. Search of Weekly Law Reports using the key word “easement” Midtown Ltd v City of London Real Property Co Ltd; If a local authority or its successor wished to rely on the power to override an easement or other right under s 237 of the Town and Country Planning Act ... www.lawreports.co.uk/WLRD/2005/CHAN/chanjanf0.2.htm - 9k - Cached - Similar pages House of Lords and Privy Council ... EASEMENT, Right of way - Grant - 20 years user in breach of statutory prohibition - Whether preventing acquisition of easement - Law of Property Act 1925, s 193 ... www.lawreports.co.uk/iclr/hl-pcnewD-I.htm - 101k - Supplemental Result - Cached - Similar pages [PDF] THE WEEKLY LAW REPORTS File Format: PDF/Adobe Acrobat - View as HTML EASEMENT- Right of way - Grant - 20 years’ user. in breach of statutory prohibition - Whether ... unlawful, but an easement could be acquired by a long ... www.lawreports.co.uk/Newsletter/Summer04.pdf - Similar pages WLR Daily: Subject Matter Search ... successor in title to local authority — Whether developer able to rely on power to override easement — Town and Country Planning Act 1990, s 237 ... www.lawreports.co.uk/WLRD/CourtIndex/ChD/a-z.htm - 19k - 10 Mar 2006 - Cached - Similar pages Chancery Division ... adjacent land — Defendant not party to lease — Whether reservation impinging on covenant — Whether restricting tenants right to assert easement of light ... www.lawreports.co.uk/iclr/channewL-Z.htm - 101k - Supplemental Result - Cached - Similar pages Palmer v. Bowman EASEMENT — Water — Natural drainage of Water from higher to lower land — Whether ... Accordingly, as the claimants needed no EASEMENT over the lower land to ... www.lawreports.co.uk/civoct0.2.htm - 5k - Supplemental Result - Cached - Similar pages Terry v East Sussex Coroner Judge Rich QC said that the freehold of 28 King Street enjoyed an easement of light under the doctrine of lost modern grant. the proposed joint venture ... www.lawreports.co.uk/chanjul0.2.htm - 6k - Supplemental Result - Cached - Similar pages Mulvaney v Jackson and others [2002] EWCA Civ 1010 EASEMENT — Right of way — Grant — Right to use land as communal garden — Whether capable of existing as EASEMENT. Mulvaney v Jackson and others [2002] EWCA ... www.lawreports.co.uk/civjulb2.0.htm - 5k - Supplemental Result - Cached - Similar pages Court of Appeal - Civil Division EASEMENT, right of way — Grant — Illegality — Property owners driving across Common land for purposes of access in contravention of statute — Whether ... www.lawreports.co.uk/ca-civnewD-F.htm - 177k - Supplemental Result - Cached - Similar pages Read More