1.1 Commercial Property: Development Issues Flashcards
What are the exceptional circumstances in Regan v Paul when injunction not appropriate
Small obstruction, money sufficient and oppressive to developer
By when must emergency interim possession order be made
28 days from discovery
When might the premium for RC indemnity insurance be expensive
If relates to future breach
What is an LON
Light obstruction notice registered as land charge to virtually obstruct light
What two permissions are needed if jib of crane passing over other land
Crane oversail licence + consent from landowner + tenants of roofspace
HKRUK II v Henry ratio
Continued Regan trend, despite significant demolition to comply
What case confirmed Coventry v Lawrence
Ottercroft
Injunction for obstructing RtL likely unless exceptional (CASE)
Regan v Paul
Coventry v Lawrence ratio
Injunction starting point, but discretion - consider conduct of developer + if injury can be compensated
What happens if there are gaps between title plan and scaled plans
Ransom strips
What should happen if road needs to be stopped up - contractually between parties
Make C conditional on obtaining order (116 HA) and time limits expiring
Three potential access issues
Roads, public RoW and services
2 title issues to consider for commercial property
Covenants and access issues
What should happen if public RoW needs to be moved
C conditional on order being obtained and time limits expiring.
How to rebut lost and modern grant
Show express grant could not have been given
What should you do to check title plan
Instruct surveyor and check accords w/ title - create scaled plans
Three remedies for squatters of commercial premises
Negotiate, emergency interim possession order or CPR Part 55
When can AP of unregistered land get absolute title
After 24 years of AP
Why are ransom strips so called?
To be purchased at a premium from an owner
Two ways to assert right to airspace
Trespass or nuisance
Regan v Paul ratio
Injunction for obstructing RtL likely unless exceptional
What are damages for obstructing RtL under Coventry
Loss of amenity and diminution in value, NOT what PWB could have negotiated to released RtL
How is right to light obtained through prescription
20 years’ continuous light to specific aperture
What does it mean if lease of tenants occupying is not contracted out of LTA ‘54
Security of tenure procedure to follow, check break clauses or negotiate w/ tenants
When does s.203 HPA apply
Carrying out building work on land w/ requisite involvement of authority in 205
What search to find out if property abuts highway
Highways Search
What method is used to prove 10 years’ uninterrupted AP for reg land
Statutory declaration
What provision puts costs of passing title to B on S, if S giving full/limited title guarantee
2(1) LP(MP)A
What happens if property abuts public highway for services - what rights are there?
Statutory undertakers can construct new infrastructure under public roads, w/o needing easement
When does a positive covenant become an issue - what conditions
Must be indemnity covenant
Part X TCPA for?
App to SoS for order to stop up for proposed development
If part of land may be in AP, what is it important to check
SIM search to see if reg or unreg - different times of AP apply
What Order to move public RoW
Public Path Diversion Order
3 ways obtaining right to light
Deed, prescription and lost modern grant
What title does AP get if successful app to LR for reg land
Same class of title as previous proprietor
What Act allows LON to be registered
Right of Light Act 1959
What happens if reg proprietor opposes APs application but AP still in occupation after 2 years
AP must be registered - so evict asap
Three options if negative covenant conflicts w/ developer’s wishes
RC indemnity insurance, PWB consent and UT(LC)
How long does the proprietor and mortgagee have to oppose AP application for title to reg land
3 months
How long must 3rd be in AP of reg land
10 years’ uninterrupted
What rights does a person w/ right to light have
Uninterrupted use for comfortable use and enjoyment
What consent is required if jib of crane passing over public highway
Consent from Highway Authority
Three things to show for AP
Factual + adverse possession and for prescribed time
Two downsides of emergency interim possession order
Complex and costly
Colls v Homes ratio
RtL = uninterrupted light for comfortable use and enjoyment
When can AP still succeed even if reg proprietor opposes application
1) Proprietary estoppel
2) Otherwise entitled
3) AP for 10 years + relates to his neighbouring land + reasonable belief + his estate reg for >1 year before AP app
Four cases on remedies for obstructing RtL
Regan v Paul, HKRUK II v Henry, Coventry v Lawrence and Ottercroft v Scandia
When is a crane oversail licence required
If jib of crane passing over other land
Licence that may be required due to rights of neighbours to airspace
Crane oversail licence
What is the effect of s.203 HPA
Removes risk of injunction but compensation payable to PWB
S.38 Highways Act for?
Adoption of road once constructed
When might a restrictive covenant be an issue
Relates to something developer wants to do
What should B do if road is not public, but goes into property
Put up clear sign to ensure not inadvertently dedicated by continuous uninterrupted use
What is the procedure for LON
Serve on dominant owner, reg at LR + apply to UT(LC) for definitive certificate of reg
What might have to happen if construction traffic into property
Create temporary access
If the property does not abut the highway and has an easement, what practical consideration is there
LA may require user to bring up to adoptable standard, if to be adopted
Which option is not available for positive covenants and why
UT(LC) - no jurisdiction over contractual matterss
To avoid having to incur costs of adoptable standard later, what could B do
Agree with LA to construct to adoptable standard and for adoption on completion
Consideration for Ts if road to be constructed to adoptable standard
Bond in place - if L fails, LA can use bond
Option after RC insurance
PWB consent
Can 2(1) LP(MP)A be modified? Should it?
Can be, but B should resist - cost of e.g. removing squatters can be high
Who is LON served on
Dominant owner - owner w/ RtL
If there is potential AP, what two things could B ask from S
Either that S apply for AP as condition in C, or that B obtains statutory declaration on S’s AP as evidence to submitt o LR
What happens if DO does not object despite LON being registered after 19 years and 1 day
DO deemed to acquiesce to obstruction - loses right to light as Prescription Act counts 20 years back from challenge
What expert is appointed in RtL disputes
Light surveyor
When might you go to UT(LC) for covenant
If PWB AWOL or unreasonable
Two ways right to run/lay services can be acquired
Prescription or formal deed
What case stated principles to value damages for obstructing RtL
Coventry v Lawrence
What is an emergency interim possession order
Imprisonment if squatters do not vacate within 24 hours of being served
Where to find indemnity covenant, if given
Proprietorship Register
How does Bernstein v Skyviews limit right to airspace
Only what is necessary for ordinary use and enjoyment
How can you identify if rights are excepted from transfer of title
Property Register
For what squatter remedy must papers be served personally
CPR Part 55
What should you check if tenants are occupying premises
Obtain copy of lease to see if contracted out of LTA ‘54
What search to find out if roads are public
CON29
Why is stopping up time-consuming
Need to display + serve notices, and possible objections/challenges
When are squatters illegal
Only for residential
What happens if LON not registered until after 19 years and 1 day
DO can object
What happens in terms of negotiation if need to move public RoW
Negotiate alteration w/ seller
2 neighbouring rights to be aware of
Airspace and right to light
How long must private road be used by public w/ continuous uninterrupted use before public
20 years
Does LON mean no RtL possible
No - does not prevent los and modern grant
Three kinds of third party occupiers
Tenancies, adverse possession and squatters
Ottercroft v Scandia ratio
Confirmed Coventry, but developer breached UT so injunction
How to find out if deed for right to light has been given
Proprietorship Register of PWB + Charges of burdened
What case confirmed Regan
HKRU II v Heaney
What is factual possession
Exclusive possession
What is the CL presumption for ownership of everything below the surface on sale
Passes to B
Why are third party occupiers an issue
B wants vacant possession
By when must LON be registered (so DO cannot object)
Reg for minimum 1 years before 19 years + 1 day of uninterrupted light
Why apply to UT(LC) for LON
For definitive certificate of registration
Under what can an app be made to SoS for order to stop up for proposed development?
Part X TCPA
S.116 Highways Act for?
Stop up public highway
What is the first option always to consider for negative covenant
Insurance
What does AP get if 12 years’ uninterrupted AP of unreg land
Possessory title
Under what provision can the LA agree to adopt a road once constructed
s.38 Highways Act
What provision applies if need to move public RoW
S.119 Highways Act
RtL = uninterrupted light for comfortable use and enjoyment (CASE)
Colls v Homes
If there is an issue with minerals under surface (after survey), over which 3rd has rights, what options does B have?
Insurance, and if unsuccessful, purchase rights from PWB
How long must 3rd be in AP for if unregistered land
12 years’ uninterrupted
Under what Act is prescription for right to light
Prescription Act 1832
Downside of needing to move public RoW
Time-consuming and costly
What is the downside of CPR Part 55 to remove squatters
Must serve papers personally, expensive and time-consuming
What part of HPA defines involvement of specified authority for 203 HPA to apply
205
For what action in asserting right to airspace is there no need for loss
Trespass
What is lost and modern grant
Showing 20 years of RtL at any point = presumed express grant now lost
When do certain works have to be carried out prior to commencement of work on the site
If s.106 agreement agreed w/ LPA
What makes positive covenants run with the land
Indemnity covenant
Three downsides of UT(LC)
Expensive, time-consuming and result not guaranteed
What provision applies when advising on RC insurance
19(1) FSMA
Alternatives to LON (5)
Negotiate deed of release, redesign, buy property w/ RtL, RtL indemnity insurance, 203 HPA
What search shows public RoW
CON29
If rights are excepted under Property Register, what next
Survey to establish scope + extent of e.g. mines
Continued Regan trend, despite significant demolition to comply (case)
HKRUK II v Heaney
Downside of stopping up
Time-consuming and costly
If 3rd party occupiers, what should happen
C conditional on vacating
Case laying down right to airspace
Bernstein v Skyviews
Final, last resort for RtL issues
S.203 HPA
What provision to stop up public highway
S.116 Highways Act
