Prescriptive Easement

Re: Prescriptive Easement

Postby VPatel2707 » Thu Apr 27, 2017 3:10 pm

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Re: Prescriptive Easement

Postby VPatel2707 » Thu Apr 27, 2017 3:12 pm

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Re: Prescriptive Easement

Postby VPatel2707 » Thu Apr 27, 2017 3:13 pm

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Re: Prescriptive Easement

Postby Collaborate » Thu Apr 27, 2017 3:43 pm

Assuming OP's property once included the FACS, and at the time of the sale there was an air con unit on OP's property serving the FACS, the question must be whether or not the air con unit is capable of constituting an easement expressly reserved under the transfer (a privilege in the nature of an easement?). They would also have to prove that as at 5 February 1999 the unit was sitting on the roof. It seems that their solicitor either hasn't considered this or they have considered it but do not believe that they have an easement created by deed.

I would still put them to proof to back up their claim in their letter. Leave it at that for now, and perhaps give them a deadline by which they supply the proof after which you will remove the unit.
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Re: Prescriptive Easement

Postby jonahinoz » Sat Apr 29, 2017 4:18 pm

Hi,

I'll repeat the questions ...

If Mr Patel bought his property, with the extractor fan on the roof, did he also buy the extractor fan?

Is the extractor fan connected to the FACS electric meter, or Mr Patel's meter?

Would the extractor fan be covered by FACS insurance, if it caused injury, or a fire?

Should Mr Patel be paying Business Rates, if his premises are being used as an extension to the FACS business?

Is whoever inspected the FACS premises for H&S, etc, aware the mandatory (?) extractor fan is located elsewhere?

Sometime in the early 1990s, the electric wiring regulations changed. Different colour wires were required for new circuits. A quick look at the colour of the extractor fan wires may indicate whether it was installed before or after the relevant date.

When I was buying my present house, my solicitor was able to refer to a web-site, to see if recently fitted windows complied with FENSA. Is there anything similar that could be used to check safe installation of this extractor fan?

John W
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Re: Prescriptive Easement

Postby VPatel2707 » Sun Apr 30, 2017 11:12 am

Thank you to everybody who has posted, it has been extremely helpful.

I have wrote back to the FACS solicitors to state that a deadline is set of 08 May 2017 for them to provide the necessary documentation - if nothing is provided, we will go ahead and complete the necessary work on the roof.
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Re: Prescriptive Easement

Postby VPatel2707 » Sun Apr 30, 2017 11:13 am

jonahinoz wrote:Hi,

I'll repeat the questions ...

If Mr Patel bought his property, with the extractor fan on the roof, did he also buy the extractor fan?

Is the extractor fan connected to the FACS electric meter, or Mr Patel's meter?

Would the extractor fan be covered by FACS insurance, if it caused injury, or a fire?

Should Mr Patel be paying Business Rates, if his premises are being used as an extension to the FACS business?

Is whoever inspected the FACS premises for H&S, etc, aware the mandatory (?) extractor fan is located elsewhere?

Sometime in the early 1990s, the electric wiring regulations changed. Different colour wires were required for new circuits. A quick look at the colour of the extractor fan wires may indicate whether it was installed before or after the relevant date.

When I was buying my present house, my solicitor was able to refer to a web-site, to see if recently fitted windows complied with FENSA. Is there anything similar that could be used to check safe installation of this extractor fan?

John W



Thanks John, these are important questions that unfortunately I cannot answer at the moment.
I'll take a look at the wiring and let you know.
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Re: Prescriptive Easement

Postby VPatel2707 » Sat May 06, 2017 3:03 pm

Thank you to everyone that has provided some valuable information thus far.

I emailed the FACS solicitors requesting that they provide further information in respect of how they ascertain claims that the FACS owner has an existing right/easement to the extractor. I also asked that they tell me the legal method they are relying on as well as official documentation that the FACS owner has been using the extractor for at least 20 years. I gave them a deadline of 08 May 2017 and informed them that if no documentation is received, we will instruct the relevant organisation to complete the work on the roof and for immediate removal of the extractor.

In response, I have received the following letter from the FACS solicitors - as follows (comments in brackets)

Without Prejudice Save As to Costs

We refer to your email of 22nd and 27th April 2017

We refer you to our letter of 10th October 2016, a copy of which is attached. Our client's position is quite clear. On a without prejudice basis and in an effort to assist Mr Patel (my dad) as you refer to him being in ill health (at the time of when the rook was leaking, it was during the Winter) our client proposed solution set out to you in our without prejudice letter of 14th March 2017 (this was to pay £576.00 for the FACS to remove the extractor). Please confirm within the next seven days as to whether or not that proposal is accepted or not.

Our client does not propose to enter into protractive correspondence concerning this matter and we suggest that Mr Patel seek independent legal advice given that our client's legal position has been made clear. Although our client has been the registered proprietor for less than twenty years, we understand from our client that the extractor has been in place for more than twenty years.

Interesting letter for me - firstly, they are not willing to provide the necessary proof - they are relying on the FACS telling them that the extractor has been in place for more than twenty years.

Just thinking that we can now proceed with undertaking the work - do I need to reply back to this letter?
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Re: Prescriptive Easement

Postby jdfi » Sat May 06, 2017 3:32 pm

VPatel2707 wrote:Just thinking that we can now proceed with undertaking the work - do I need to reply back to this letter?


How brave do you feel? When they get physical what will your guys do?

Is there a day of the week they are offsite?

What will you say to police when they inevitably turn up?
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Re: Prescriptive Easement

Postby VPatel2707 » Sat May 06, 2017 4:44 pm

jdfi wrote:
VPatel2707 wrote:Just thinking that we can now proceed with undertaking the work - do I need to reply back to this letter?


How brave do you feel? When they get physical what will your guys do?

Is there a day of the week they are offsite?

What will you say to police when they inevitably turn up?


OK - maybe I worded that incorrectly. I am trying to say that the work needs to be completed, they haven't provided us with proof. The work is going to be completed on my father's property.
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Re: Prescriptive Easement

Postby MacadamB53 » Sat May 06, 2017 4:45 pm

Hi VPatel2707,

Just thinking that we can now proceed with undertaking the work

what work is that? and who do you foresee will be paying?

Kind regards, Mac
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Re: Prescriptive Easement

Postby jonahinoz » Sat May 06, 2017 4:47 pm

Hi,

Tell FACS that his extractor fan is unsafe, due to the state of the roof. Invite him to repair the roof at his expense, before you call in the Factories Inspector..

I think I'm joking, but maybe not.

John W
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Re: Prescriptive Easement

Postby VPatel2707 » Sat May 06, 2017 4:49 pm

MacadamB53 wrote:Hi VPatel2707,

Just thinking that we can now proceed with undertaking the work

what work is that? and who do you foresee will be paying?

Kind regards, Mac


Hey MacadamB53,

The roof on my father's property is leaking and in order to rectify the repair, we need to tamper (or even remove) the extractor fan that sits on the roof. The extractor fan is used by the Fish and Chip Shop that links to my father's property. We have received relevant quotes for the leak to be fixed and we are intending to pay for that.
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Re: Prescriptive Easement

Postby VPatel2707 » Sat May 06, 2017 4:52 pm

jonahinoz wrote:Hi,

Tell FACS that his extractor fan is unsafe, due to the state of the roof. Invite him to repair the roof at his expense, before you call in the Factories Inspector..

I think I'm joking, but maybe not.

John W


Maybe I should! Ha
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Re: Prescriptive Easement

Postby Collaborate » Sat May 06, 2017 6:36 pm

It sounds to me like they have no evidence it's been there 20 years.

I'd give them a further 7 days, telling them that they are required to evidence their claim, just as they would have to supply evidence were they to send you a letter before action.

After that I'd simply remove it with no further engagement with them. If they subsequently take you to court and at that stage produce evidence of a prescriptive easement the court would take a dim view of them having failed to provide the evidence at the outset.
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