Prescriptive Easement

Re: Prescriptive Easement

Postby jdfi » Sun May 07, 2017 10:11 am

So do they live on site? What time do they arrive at work?

Out of interest, how do air pipes and electric power get to the fan? Are the holes in their ceiling or yours?
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Re: Prescriptive Easement

Postby VPatel2707 » Sun May 07, 2017 5:43 pm

If somebody can cast there eyes over this response to the FACS solicitors, I'd be most grateful. I currently work in Employment Law but not familiar with this area of law therefore please can somebody correct me if I am mis-interpreting terminology and judgements:

For Reference - A = My Father.

I write in response to your correspondence dated 05 May 2017.

I can confirm that A is not willing to accept the proposal that was offered by you on a without prejudice basis.

Further, I note that you confirm your client is not proposing to enter into ‘protractive correspondence’ concerning this particular matter. On this basis, it is clear and evident that your client does not have any evidence/proof at hand in order to substantiate your claims of the prescriptive easement. You are also relying on your client’s ‘understanding’ that the extractor has been in place for more than twenty years. This confirms that your client has not had more than 20 years of uninterrupted enjoyment of the alleged easement. You will be aware that if the matter proceeded to be heard and rectified within the Civil Court, documentation to confirm your client’s claim would need to be provided in accordance with Part 31 of the Civil Procedure Rules. You would also need to prove that as at 05 February 1999, the extractor unit was in place. It appears that as your client’s representative, you either haven’t considered this, or you have but do not believe that your client has an easement created by deed therefore you are basing your claims on ‘prescription by common law’.

In addition, if you do issue court proceedings against A, he will be defined as being the ‘servient tenement’ and your client will be known as the ‘dominant tenement’.

During court proceedings, you will be aware that the burden of proof lies with your client and the onus on proving that usage of the extractor was ‘as of right’, as stipulated in Newnham v. Willison (1988) P&CR 8 at 17 per Kerr LJ.

A wholly confirms that the letter sent to your client on 03 October 2016 shows that he is objecting to your client continuing usage of the extractor that is present on his legal and rightful property, hence the pre-warning that the extractor is going to be interfered with and/or removed in order for the mandatory work to be completed on his roof. Further correspondence between you and I since the letter dated 03 October 2016 shows evidence that this has become, and continuing to be, a contentious issue and therefore will now be treated as your client continuing to use the extractor 'as force', as defined and confirmed in Newnham v Willison (1988) 56 P&CR8.

Taking the above into account, A is allowing your client a further 7 days to evidence your claims, just as you would be expected to do if you were intending to serve a ‘Letter Before Action’ on A at some point in the near future. If you subsequently issue court proceedings against A, and at that stage produce evidence of a prescriptive easement, it is more than likely that the court may question you as to why you have failed to provide the evidence/proof at the outset and during this correspondence.

If I do not hear from you within the next 7 working days (i.e. by 17:00 hours on 15 May 2017), A will be removing the extractor with no further engagement with yourselves or your client and this particular act is an act that demonstrates A's objections to your client using the extractor.

I cannot emphasise the fact that this will be the full and final opportunity for you and your client to provide evidence/proof within the stipulated timeframe as per the above otherwise we will be proceeding.



Faithfully,


Me.
Last edited by VPatel2707 on Sun May 07, 2017 5:49 pm, edited 1 time in total.
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Re: Prescriptive Easement

Postby arborlad » Sun May 07, 2017 5:45 pm

VPatel2707 wrote: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.




Can you clarify who said what to who?.............it seems as though there is a willingness on behalf of the FACS to have the extractor removed - any mention of its replacement or relocation?
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Re: Prescriptive Easement

Postby VPatel2707 » Sun May 07, 2017 5:48 pm

arborlad wrote:
VPatel2707 wrote: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.




Can you clarify who said what to who?.............it seems as though there is a willingness on behalf of the FACS to have the extractor removed - any mention of its replacement or relocation?


Unfortunately not - the FACS solicitor said that the FACS owner would be willing to remove the extractor. So yes, in effect there is willingness on his part to remove it but no mention of where it was going to go or what he was going to do with it. This letter was sent on a without prejudice basis.
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Re: Prescriptive Easement

Postby VPatel2707 » Sun May 07, 2017 5:51 pm

jdfi wrote:So do they live on site? What time do they arrive at work?

Out of interest, how do air pipes and electric power get to the fan? Are the holes in their ceiling or yours?


As far as I am aware (and as far as my father is aware), power and holes and everything else is linked to the FACS owner.
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Re: Prescriptive Easement

Postby arborlad » Sun May 07, 2017 5:57 pm

VPatel2707 wrote:This confirms that your client has not had more than 20 years of uninterrupted enjoyment of the alleged easement.




My understanding is that it is not the client but the property that needs the 20 years of uninterrupted use.
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Re: Prescriptive Easement

Postby VPatel2707 » Sun May 07, 2017 6:01 pm

arborlad wrote:
VPatel2707 wrote:This confirms that your client has not had more than 20 years of uninterrupted enjoyment of the alleged easement.




My understanding is that it is not the client but the property that needs the 20 years of uninterrupted use.


Very good point - the most recent letter from the FACS solicitor states that they understand from their client that the extractor has been in place for more than 20 years...'
I guess this is why we need evidence/proof of everything.

I'll remove that line in the meantime.
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Re: Prescriptive Easement

Postby VPatel2707 » Sun May 07, 2017 8:17 pm

Amended letter as I've been working on this for most of the afternoon. I would appreciate comments/suggestions/constructive feedback please:

For Info: A = My Father


I write in response to your correspondence dated 05 May 2017.

I can confirm that A is not willing to accept the proposal that was offered by you on a without prejudice basis.

Further, I note that you confirm your client is not proposing to enter into ‘protractive correspondence’ concerning this particular matter. On this basis, it is clear and evident that your client does not have any evidence/proof in order to substantiate your claims of the prescriptive easement. You are also relying on your client’s ‘understanding’ that the extractor has been in place for more than twenty years. You will be aware that if the matter proceeded to be heard and rectified within the Civil Court, documentation to confirm your client’s claim would need to be provided in accordance with Part 31 of the Civil Procedure Rules. You would also need to prove that as at 05 February 1999, the extractor unit was in place. It appears that you either haven’t considered this, or you have but do not believe that your client has an easement created by deed therefore you are basing your claims by prescription.

You will be aware that if you do issue court proceedings against Al, he will be defined as being the ‘servient tenement’ and your client will be known as the ‘dominant tenement’.

During court proceedings, you will be aware that the burden of proof lies with your client and the onus on proving that usage of the extractor was ‘as of right’ also remains with your client, as stipulated in Newnham v. Willison (1988) P&CR 8 at 17 per Kerr LJ.

A wholly confirms that the letter sent to your client on 03 October 2016 shows that he is objecting to your client continuing usage of the extractor that is present on his legal and rightful property, hence the pre-warning that the extractor is going to be interfered with and/or removed. Any further correspondence sent from me to you post 03 October 2016 also confirms that we are objecting to your client’s unlawful continued usage of the extractor. A is acting in accordance with Smith v Brudenell-Bruce [2002] whereby A, as the servient owner, is making forceful written objection to your client and therefore any further use of the extractor by your client is deemed as contentious and therefore no longer acquires the ‘as of right’ usage.

Further correspondence between you and I since the letter dated 03 October 2016 shows evidence that this has become, and continuing to be, a contentious issue and therefore will now be treated ‘as force’, by A, as defined and confirmed in Newnham v Willison (1988) 56 P&CR8.

It is also widely known that your client (as the dominant tenement) has to take into account (and what a court will seek to consider) that A (as the servient tenement) has a right to peaceful enjoyment of his land and the legitimate development of his land and the performance of the easement should not interfere with A’s peace or prevent him from exercising his right to develop his land. Since Al’s letter on 03 October 2016, I have continually stated to you that the roof on his property is leaking and he is having to sweep away excess water in order to temporarily manage the problem. During the Winter months, A was contracting the common cold illness more frequently because he was having to complete this task in cold weather. This does not constitute peaceful enjoyment of his land. Further, A has constantly exercised his right (and continues to exercise this right) to develop his land, namely the roof on his property.

Taking the above into account, A is allowing your client a further 7 days to evidence your claims, just as you would be expected to do if you were intending to serve a ‘Letter Before Action’ on A at some point in the near future. If you subsequently issue court proceedings against A, and at that stage produce evidence of a prescriptive easement, it is more than likely that the court may question you as to why you have failed to provide the evidence/proof at the outset and during our correspondence between each other.

If I do not hear from you within the next 7 working days (i.e. by 17:00 hours on 15 May 2017), A will be removing the extractor with no further engagement with yourselves or your client and this particular act will show evidence to you and your client that he is continuing to object to your client using the extractor.

I cannot emphasise the fact that this will be the full and final opportunity for you and your client to provide evidence/proof within the stipulated timeframe as per the above otherwise we will be proceeding.
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Re: Prescriptive Easement

Postby mr sheen » Sun May 07, 2017 10:24 pm

It looks like the FACS is willing to negotiate a settlement. Why is the figure unacceptable? How much do you want for them to remove it.....I would have thought them removing it would be the best solution all round.

However in response to your request for info on proposed correspondence....

IMO.....
Communication with solicitors can lead to providing too much information that can then be used against you by fancy barristers.
It isn't the place of a property owner to provide a solicitor acting for someone else with legal advice and precedent.
The motivation to state your case down to every detail and lay out all your legal argument provides the opposition with the opportunity to seek ammunition for a counter argument.
The protracted letter almost implies that there may be an easement and hence could work against you. It may be that you have already given too much info.....what was in previous correspondence?


My response would be....short and simple and outline only my assertions and intended actions so that they have to act if they don't want those actions taken.

I confirm receipt of your correspondence dated xyz.
Your client is using a fan that is situated on our roof. The fan has resulted in water damage to our property and needs to be removed as soon as possible to prevent further damage to our property. The damages include damp and mould which are causing health problems to the inhabitants, one of whom is elderly and in poor health.
Considering the damage the fan is causing, we intend to remove it in 7days from the date of this letter in order to mitigate further damages. In order to avoid a recurrence of current problems the roof will be re-roofed.
We note that your client has made a 'without prejudice' offer to remove the fan that he is using and that has resulted in water damage to our property. The terms of the offer are unacceptable to us.



I.e. I would point out my case and no more.
I would refer to the fACS as 'using the fan' which does not concede any ownership either way nor any easement.
I would point out that damages are being incurred...implying that there will be a claim for damages if a court case ensues.
I would point out that the fan will be removed and the roof repaired in order to prevent further damages.
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Re: Prescriptive Easement

Postby VPatel2707 » Sun May 07, 2017 10:35 pm

mr sheen wrote:It looks like the FACS is willing to negotiate a settlement. Why is the figure unacceptable? How much do you want for them to remove it.....I would have thought them removing it would be the best solution all round.

However in response to your request for info on proposed correspondence....

IMO.....
Communication with solicitors can lead to providing too much information that can then be used against you by fancy barristers.
It isn't the place of a property owner to provide a solicitor acting for someone else with legal advice and precedent.
The motivation to state your case down to every detail and lay out all your legal argument provides the opposition with the opportunity to seek ammunition for a counter argument.
The protracted letter almost implies that there may be an easement and hence could work against you. It may be that you have already given too much info.....what was in previous correspondence?


My response would be....short and simple and outline only my assertions and intended actions so that they have to act if they don't want those actions taken.

I confirm receipt of your correspondence dated xyz.
Your client is using a fan that is situated on our roof. The fan has resulted in water damage to our property and needs to be removed as soon as possible to prevent further damage to our property. The damages include damp and mould which are causing health problems to the inhabitants, one of whom is elderly and in poor health.
Considering the damage the fan is causing, we intend to remove it in 7days from the date of this letter in order to mitigate further damages. In order to avoid a recurrence of current problems the roof will be re-roofed.
We note that your client has made a 'without prejudice' offer to remove the fan that he is using and that has resulted in water damage to our property. The terms of the offer are unacceptable to us.



I.e. I would point out my case and no more.
I would refer to the fACS as 'using the fan' which does not concede any ownership either way nor any easement.
I would point out that damages are being incurred...implying that there will be a claim for damages if a court case ensues.
I would point out that the fan will be removed and the roof repaired in order to prevent further damages.



Many thanks for your input. Greatly appreciated. I'll amend the letter tomorrow.
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Re: Prescriptive Easement

Postby VPatel2707 » Thu May 25, 2017 7:00 pm

Hey
Just by way of an update, I think we might be heading towards settlement.

However, I want to ensure we are covered in terms of ensuring that if a payment is made, then on a without prejudice basis the matter is closed. I'm thinking a settlement agreement but I've been told I need to enter clauses into the without prejudice letter.

Can someone give me a steer on the clauses to propose?

Thanks
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Re: Prescriptive Easement

Postby span » Thu May 25, 2017 7:25 pm

VPatel2707 wrote:Hey
Just by way of an update, I think we might be heading towards settlement.

However, I want to ensure we are covered in terms of ensuring that if a payment is made, then on a without prejudice basis the matter is closed. I'm thinking a settlement agreement but I've been told I need to enter clauses into the without prejudice letter.

Can someone give me a steer on the clauses to propose?

Thanks


Why do you want the letter to be without prejudice?
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Re: Prescriptive Easement

Postby VPatel2707 » Thu May 25, 2017 7:30 pm

Hi Span,

The FACS solicitors said that the owner will pay for the extractor to be removed at a cost of £576.00 - the solicitors said that the cost of this must be met by my father. This was sent on a WP basis.

We had an organisation visit the roof today and they said they can remove it for £250.00 - I am requesting that both parties contribute 50% each (£125.00 each).

I want to be covered that if this is agreed, then the FACS owner has no legal right (if confirmed or otherwise) that he has no rights to the extractor by way of easement.

I've drafted the following so far (I've removed reference to my father's name and put in 'my father' for the purposes of confidentiality):

1. The removal of the extractor will mean:

a. That your client, regardless of whether a legal right exists by way of a prescriptive easement or by other qualifying means, will extinguish all rights to the extractor;
b. That usage of the extractor by your client, regardless of the length of time that your client alleges it has been in use for, does not concede ownership by your client either way nor any easement;
c. That no form of legal action will be taken against my father when the extractor is removed and from an indefinite period thereafter;
d. That no form of criminal action will be taken against my father when the extractor is removed, and from an indefinite period thereafter;
e. That my father will continue to the right to peaceful enjoyment of his land and the legitimate development of his land.
f. That my father will not take further action against your client in respect of this particular matter and will not present further claims for damages.
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Re: Prescriptive Easement

Postby MacadamB53 » Thu May 25, 2017 8:44 pm

Hi VPatel2707,

your client, regardless of whether a legal right exists by way of a prescriptive easement or by other qualifying means, will extinguish all rights to the extractor;

including their right to own and possess? a bit extreme...

Kind regards, Mac
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Re: Prescriptive Easement

Postby VPatel2707 » Thu May 25, 2017 9:05 pm

MacadamB53 wrote:Hi VPatel2707,

your client, regardless of whether a legal right exists by way of a prescriptive easement or by other qualifying means, will extinguish all rights to the extractor;

including their right to own and possess? a bit extreme...

Kind regards, Mac


Good point - shall I change that bit to 'excluding your clients right to own and possess...'
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