This post was written by Siobhan Hayes and Marjorie Holmes.
Have those involved in property development buried their heads in the sand over the question of competition law applying to land agreements? How many carefully drafted exclusivity arrangements for anchor and major tenants could be unenforceable because of the Competition Act which now applies fully to land agreements?
Continue Reading...This post was written by Brigid North and Emma Parsons.
In this post we revisit private rights of way from the perspective of a development site – looking at how they are created, varied, and how they can be extinguished.
Q1: ‘I recently purchased a large estate. At the time of purchase, my lawyers reported that the area close to one boundary was subject to a right of way contained in a 19th century deed. There is no evidence that anyone has used it for a long time. I want to redevelop my land: can I build over the right of way?’
A1: No. The right of way still exists and you are not permitted to obstruct or interfere with it, unless the deed says you can. In one case, a right of way which had not been used in over 175 years was still technically in existence! Lack of use of a formal right of way is insufficient to show it has been abandoned. To be able to prove abandonment, the evidence has to be so overwhelming as to show that the person with the right of way has permanently given it up. Each case will be determined on its facts. For example:
(a) a vehicular right of way over a lane was abandoned when the beneficiary allowed the public use of the lane as a footpath. The lane was exceptionally narrow and it was established that there was not enough room for both vehicular and pedestrian use; but
(b) a right of way over a canal was not abandoned when the beneficiary sold off that part of the property which abutted the canal. It was decided that the benefit remained as the parcel of land could have been purchased again.
Q2: ‘Would it make a difference if the right of way had been acquired by use without a deed?’
A2: No. Once a right of way has been established by continuous use of twenty years it does not have to go on being used consistently. The rights obtained are the same as if the right was granted by deed and known as prescriptive rights.
Q3: ‘The owner of the adjoining property which has the benefit of this right of way is planning to redevelop his property which will increase the amount of traffic using the right of way. Can he do this?’
A3: Maybe. Again, we need to look to the deed as a whole or where there is no deed the circumstances in which the right was acquired by prescription. The context of the right is important.
Even if the deed does not limit the right of way – for example if it simply states it can be used ‘with or without carriages’ – then the amount of traffic using it may not be increased if there are other provisions in the deed that are inconsistent with this (e.g. a covenant limiting the use of the property for residential purposes).
In addition, if the rights were acquired by prescription, a change of use could result in the right being lost. For example, if the right was acquired to access a single residential property and that residential property is redeveloped for commercial purposes, it is unlikely that the right of way will be valid for the new use.
Property owners should monitor the exercise of any rights of way over their land; and those exercising a right of way need to be aware of the context in which the right arose and the limits on its use.
Finally, it should be remembered that rights can also be acquired by the public in general. The rules governing the acquisition of such rights are different and that is the subject of another blog.
This post was written by Christopher Parrott.
Changes to construction legislation coming into force on 1 October 2011 (1 November 2011 in Scotland) will incorporate revisions to the fair payment and adjudication provisions required to be included in construction contracts. Unless developers are careful about updating their construction contracts, they may unwittingly find that the provisions they believe to be agreed are replaced with something stricter.
The changes include an overhaul of the payment procedure, with the “withholding notice” process replaced by a new “pay less notice” system. Contractors’ and consultants’ remedies following suspension for non-payment have been widened. The provisions now also apply to contracts which are not in writing.
Unless developers entering into construction contracts specifically address the changes in their bespoke contracts, or use updated standard form contracts, they run the risk that the statutory regime takes precedence. Updated JCT contracts which are compliant with these changes will be published in the next couple of weeks.
Unfortunately the legislation is not particularly well drafted and the proposed changes are difficult to interpret. For those of you concerned about the impact on your construction contracts, our experts Christopher Parrott, Jonathan Stone, and Elinor Crowther have prepared a detailed alert covering the changes to the Act which can be accessed if you follow this link.
This post was written by Laura Peasnell and Siobhan Hayes.
Telecom masts can be a welcome source of income but can also pose problems when you want to redevelop a property. The Law Commission has just announced that it is going to review the Electronic Communications Code which may be good news for property owners. The review process will take until Spring 2013, so it will continue to be important for owners to exercise caution when telecoms operators want to place equipment on their land. Given this week’s news about increasing broadband speeds for parts of the country that are badly served at present, more electronic communications sites will be needed by the operators.
Continue Reading...This post was written by Catrin Phillips and Siobhan Hayes.
We have previously posted on the potential pitfalls for developers arising because of Commons legislation. No developer of land historically used for leisure activities by the public can afford to ignore the risks of commons registration, as the Courts are currently interpreting the legislation in favour of the users of the land (not the owners). A recent case decided in favour of the developer is limited to a particular set of circumstances and was based on clear legislative intent.
Continue Reading...This post was written by Harriet Morgan and Emma Parsons
From 6 April 2011, residential property with a consideration of over £1m will be subject to a higher SDLT rate of 5%.
This means that a purchaser whose transaction will complete on or after 6 April 2011 will find themselves paying more SDLT than if completion had taken place the day before! This increase only applies to land which consists entirely of residential property. It does not apply to non-residential or mixed used property.
Continue Reading...This post was written by Richard Nicoll, Emma Parsons and Siobhan Hayes
Since we posted on the effects of The Commons Act 2006 back in June 2009 there have been three cases. Many land owners will now find it harder to resist an application for registration of land as a town or village green and will have to live with the restrictions that registration creates.
The recent cases have been decided in favour of the residents who claim the right to use the land as a green and, as a result, developers of open land must face up to the issue at an early stage.
Continue Reading...This post was written by Siobhan Hayes, Emma Parsons and Catrin Phillips
On 6 April 2010, the new Community Infrastructure Levy (‘CIL’) Regulations came into force, partially replacing the current system of Section 106 agreements. There won’t be an immediate change in the planning regime, but now is the time to think about the CIL and any potential impact on future developments and transactions.
Continue Reading...This post was written by Marjorie Holmes, Richard Nicoll and Siobhan Hayes.
In our previous posting ‘Land Agreements come under the Competition Law Spotlight’ when government consultation was underway, we reported on the likely impact of Competition Law applying to property deals. Whilst the issue arose out of the Competition Commission’s market investigation into the supply of groceries, the changes that will apply from 6 April 2010 can affect any property agreements and will affect pre-existing agreements as well as anything to be entered into after 6 April. The commercial property world needs a new competition law mindset.
Continue Reading...This post was written by Mark Hargreaves, Emma Parsons and Catrin Phillips.
Following on from our original blog on the Bribery Bill there have been some changes to the Bill during its speedy passage through Parliament. We have no doubt that this Bill will be enacted before the General Election. Agents, investors and developers do need to be aware of the new law and will be required to review internal procedures and contracts with those supplying services to them to ensure they minimise any risks of a criminal sanction.
Continue Reading...This post was written by Siobhan Hayes and Richard Nicoll.
This is a hot topic in that a number of developments are currently being delayed/called into question by claims that the site is common land or is a town or village green. Developers need to take care when they plan to develop land that has been used by the public for their recreation.
Why? That land may turn out to be a town or a village green that cannot be built on in perpetuity. The land that the town or village inhabitants have been using for their sports and pastimes is regarded as belonging to that community for the benefit of that community.
‘Sports and pastimes’ can include informal activities like dog walking and frisbee throwing. Sites particularly at risk are areas of unfenced open land close to communities that have been using the land without permission.
The Commons Act 2006 regulates greens and common land, and is slowly being brought into force. It will not operate in a way to make life any easier for developers. It is replacing the Commons Registration Act 1965.
Common land is not particularly controversial, but the new laws for town and village greens are already proving troublesome for developers. Land owners hoping to sell for development and potential developers need to be aware of a number of risks arising for land that has been used for recreation by the locals.
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