Prescriptive Easement

Prescriptive Easement

Postby VPatel2707 » Sun Apr 23, 2017 2:09 pm

Good Afternoon,

I've been recommended to post a discussion on here from somebody at Money Saving Expert.

Please can somebody assist me with a query I have.

My parents own business property that is currently being leased - however, they 'own' the building. Next door to the building is a fish and chip shop ('FACS').

The roof of my parents' property is currently leaking and my father is having to sweep away excess water whenever it rains as the water is leaking into his property. My father has obtained quotes from various local companies to try and get the leak sorted, however sitting on the roof is an extractor. The extractor is being used by the FACS owners but it is important to note that the extractor itself sits on my father's property. Water is leaking all the time and it is starting to corrode the roof.

We wrote to the owner of the FACS to inform him that we are obtaining quotes and we will need to temporarily remove the extractor in order for the work to be carried out. We received a letter from his solicitor stating that the 'FACS owner will not be removing the extractor based on a prescriptive easement being a legal right to retain the extractor in position on the basis that it has been in situ for in excess of 20 years'. I've completed some research and I understand that a prescriptive easement can only be registered through official channels (i.e. HM Land Registry), or there is an implied term that the usage of the extractor must be used without consent, interruption or objection by my Father (not sure if I am correct here though?)

Letters have been sent back and forth to the FACS solicitor, and a month ago we received a 'Without Prejudice' letter stating that the FACS owner has obtained a quote and is willing to remove the extractor, but the cost must be met by my father. We obviously want to proceed correctly - however, what is also important is that the FACS owner only acquired his property in 2007 (information obtained on Land Registry) - therefore, we are slightly confused as to why they are saying that the FACS owner has a right to keep his extractor that as it has been in situ for 20 years? Am I missing something here? In addition, my father only obtained his property in 2005.

I have wrote back to the FACS solicitor requesting that he provide us with documentation that highlights the legal method that is being referred to by the FACS owner and also any official documentation (if he went through official means) that the FACS owner has been using the extractor for at least 20 years, as alleged.

If anyone can assist, that will be great - thanks very much :)
VPatel2707
 
Posts: 23
Joined: Sat Apr 22, 2017 6:54 pm

Ads are not endorsed by www.gardenlaw.co.uk or the staff thereof and visitors should perform their own due diligence on the product or service offered.
 

Re: Prescriptive Easement

Postby jdfi » Sun Apr 23, 2017 8:00 pm

If they've only had it on for 10 years (or hopefully can't prove any longer) then I would ensure it doesn't get replaced on your roof.
jdfi
 
Posts: 444
Joined: Wed Jun 06, 2012 10:39 pm

Re: Prescriptive Easement

Postby VPatel2707 » Mon Apr 24, 2017 8:01 am

jdfi wrote:If they've only had it on for 10 years (or hopefully can't prove any longer) then I would ensure it doesn't get replaced on your roof.


Many thanks.
So are you saying that we can instruct the FACS to install the extractor elsewhere?
VPatel2707
 
Posts: 23
Joined: Sat Apr 22, 2017 6:54 pm

Re: Prescriptive Easement

Postby copperman » Mon Apr 24, 2017 8:18 am

Are you able to get a copy of their title deeds and/or lease?

Also, are they able to prove that the extractor has been in the same position for over 20 years?
copperman
 
Posts: 28
Joined: Sat Apr 02, 2016 12:54 pm

Re: Prescriptive Easement

Postby arborlad » Mon Apr 24, 2017 8:20 am

VPatel2707 wrote: We obviously want to proceed correctly - however, what is also important is that the FACS owner only acquired his property in 2007 (information obtained on Land Registry) -




What was its use prior to 2007 - did they buy an established business?
arborlad

smile...it confuses people
arborlad
 
Posts: 7386
Joined: Sun Jul 09, 2006 6:30 pm
Location: Hertfordshire

Re: Prescriptive Easement

Postby MacadamB53 » Mon Apr 24, 2017 9:17 am

VPatel2707 wrote:
jdfi wrote:If they've only had it on for 10 years (or hopefully can't prove any longer) then I would ensure it doesn't get replaced on your roof.


Many thanks.
So are you saying that we can instruct the FACS to install the extractor elsewhere?
you can ask them to and, if they don't, you can spend a reasonably large sum of money taking it to court for a judge to instruct them to remove it if they lose.
even if you "win", as well as them having to remove the fan, you might be ordered to pay the FACS compensation as a consequence of your lengthy acquiescence (accept of the trespass without protest).

Kind regards, Mac
MacadamB53
 
Posts: 6034
Joined: Mon Dec 10, 2012 12:13 am

Re: Prescriptive Easement

Postby jonahinoz » Mon Apr 24, 2017 9:51 am

you might be ordered to pay the FACS compensation as a consequence of your lengthy acquiescence (accept of the trespass without protest).

Hi Mac,

I raised my eyebrows at the word "trespass" (OK, you might be correct, but best explore all avenues).

I have difficulty in visualising how an extractor fan arrived on Mr Patel's roof without permission ... permission once given can be retracted. Perhaps Mr FACS can explain how the fan got there in the first place ... best scenario is that Mr FACS put it there in 2007.

Me? I'd punt at least fifty pence that somebody gave him permission. If a previous owner of Mr Patel's building gave permission, does that permission continue through a change of owner?

I'd also be interested in who's electric meter the fan is connected to. Would the current (no pun) set-up comply with the Factory Acts?
And should Mr FACS be paying a share of Mr Patel's Business Rates? Is the fan insured under the policy for the FACS premises? Do FACS have access to the fan at all times? Does their easement include maintenance? Would Trading Standards be interested ... so much nicer to use somebody else's solicitor.

It might be worth looking at the Land Register for the FACS.

What would happen if Mr Patel simply let his roof rust away?

John W
jonahinoz
 
Posts: 1346
Joined: Fri Aug 05, 2011 5:15 pm

Re: Prescriptive Easement

Postby arborlad » Mon Apr 24, 2017 10:30 am

jonahinoz wrote:I have difficulty in visualising how an extractor fan arrived on Mr Patel's roof without permission ...




It could've arrived there when they were both in the same ownership.
arborlad

smile...it confuses people
arborlad
 
Posts: 7386
Joined: Sun Jul 09, 2006 6:30 pm
Location: Hertfordshire

Re: Prescriptive Easement

Postby Collaborate » Mon Apr 24, 2017 1:11 pm

They must be able to prove 20 years use. Ask for their proof before you agree to spend any more money.

The standard of proof is the balance of probabilities.

If they cannot provide proof then you are at liberty to remove it yourself.
Collaborate
 
Posts: 1124
Joined: Mon Feb 23, 2015 10:17 am

Re: Prescriptive Easement

Postby VPatel2707 » Mon Apr 24, 2017 5:38 pm

Thank you to everyone that has provided me with helpful responses, it has certainly given me something to work with moving forward.

I will request additional documentation from the FACS solicitors and stipulate a timeframe for them to respond. Judging from the comments here, I think proof that the fan has been in place for 20 years will be the deal breaker here, but cannot understand how they can provide this given that he has only been the legal owner of the property since 2007.

I'll reply back in due course.

Many thanks again for all your assistance - it is greatly appreciated.
VPatel2707
 
Posts: 23
Joined: Sat Apr 22, 2017 6:54 pm

Re: Prescriptive Easement

Postby VPatel2707 » Mon Apr 24, 2017 7:25 pm

I have also obtained the Land Registry documentation.

Would somebody be so kind to review it for me? Or, I can post it on here?
VPatel2707
 
Posts: 23
Joined: Sat Apr 22, 2017 6:54 pm

Re: Prescriptive Easement

Postby despair » Mon Apr 24, 2017 8:58 pm

in order to obtain prescriptive rights
the use must be

without permission
totally uninterupted use for over 20 years because if there was a break of 1 yr and day during that time PR is null and void
do your own sleuthing check aerial photos at local library
ask other neighbours
has it always been a FACS
start asking all the awkward questions already raised by others
if your father bougt in 2007 did he not see it
did your father neglect to have a survey done
etc etc
despair
 
Posts: 16043
Joined: Mon Mar 14, 2005 8:07 am

Re: Prescriptive Easement

Postby jonahinoz » Wed Apr 26, 2017 4:49 pm

It could've arrived there when they were both in the same ownership

Hi Arborlad,

That thought did cross my mind, but I saw no point in shooting down my own arguments. :D

But your reply reminds me of the Law of Property Act 1925 ... beloved of Pilman ... which MIGHT say that Mr Patel bought the extractor fan when he bought the property. ??? That would be a turn-up for the books ... ask FACS if they want to buy an extractor fan, buyer removes. :roll: If only .......

John W
jonahinoz
 
Posts: 1346
Joined: Fri Aug 05, 2011 5:15 pm

Re: Prescriptive Easement

Postby arborlad » Wed Apr 26, 2017 4:59 pm

VPatel2707 wrote:I have also obtained the Land Registry documentation.

Would somebody be so kind to review it for me? Or, I can post it on here?




Anonymise them first.
arborlad

smile...it confuses people
arborlad
 
Posts: 7386
Joined: Sun Jul 09, 2006 6:30 pm
Location: Hertfordshire

Re: Prescriptive Easement

Postby VPatel2707 » Thu Apr 27, 2017 3:09 pm

Land Registry - Page 1
You do not have the required permissions to view the files attached to this post.
VPatel2707
 
Posts: 23
Joined: Sat Apr 22, 2017 6:54 pm

Ads are not endorsed by www.gardenlaw.co.uk or the staff thereof and visitors should perform their own due diligence on the product or service offered.
 
Next

Return to Boundaries

Who is online

Users browsing this forum: No registered users and 5 guests