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ACP > 1.1 Commercial Property: Development Issues > Flashcards

1.1 Commercial Property: Development Issues Flashcards

1
Q

What are the exceptional circumstances in Regan v Paul when injunction not appropriate

A

Small obstruction, money sufficient and oppressive to developer

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2
Q

By when must emergency interim possession order be made

A

28 days from discovery

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3
Q

When might the premium for RC indemnity insurance be expensive

A

If relates to future breach

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4
Q

What is an LON

A

Light obstruction notice registered as land charge to virtually obstruct light

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5
Q

What two permissions are needed if jib of crane passing over other land

A

Crane oversail licence + consent from landowner + tenants of roofspace

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6
Q

HKRUK II v Henry ratio

A

Continued Regan trend, despite significant demolition to comply

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7
Q

What case confirmed Coventry v Lawrence

A

Ottercroft

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8
Q

Injunction for obstructing RtL likely unless exceptional (CASE)

A

Regan v Paul

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9
Q

Coventry v Lawrence ratio

A

Injunction starting point, but discretion - consider conduct of developer + if injury can be compensated

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10
Q

What happens if there are gaps between title plan and scaled plans

A

Ransom strips

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11
Q

What should happen if road needs to be stopped up - contractually between parties

A

Make C conditional on obtaining order (116 HA) and time limits expiring

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12
Q

Three potential access issues

A

Roads, public RoW and services

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13
Q

2 title issues to consider for commercial property

A

Covenants and access issues

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14
Q

What should happen if public RoW needs to be moved

A

C conditional on order being obtained and time limits expiring.

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15
Q

How to rebut lost and modern grant

A

Show express grant could not have been given

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16
Q

What should you do to check title plan

A

Instruct surveyor and check accords w/ title - create scaled plans

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17
Q

Three remedies for squatters of commercial premises

A

Negotiate, emergency interim possession order or CPR Part 55

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18
Q

When can AP of unregistered land get absolute title

A

After 24 years of AP

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19
Q

Why are ransom strips so called?

A

To be purchased at a premium from an owner

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20
Q

Two ways to assert right to airspace

A

Trespass or nuisance

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21
Q

Regan v Paul ratio

A

Injunction for obstructing RtL likely unless exceptional

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22
Q

What are damages for obstructing RtL under Coventry

A

Loss of amenity and diminution in value, NOT what PWB could have negotiated to released RtL

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23
Q

How is right to light obtained through prescription

A

20 years’ continuous light to specific aperture

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24
Q

What does it mean if lease of tenants occupying is not contracted out of LTA ‘54

A

Security of tenure procedure to follow, check break clauses or negotiate w/ tenants

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25
Q

When does s.203 HPA apply

A

Carrying out building work on land w/ requisite involvement of authority in 205

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26
Q

What search to find out if property abuts highway

A

Highways Search

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27
Q

What method is used to prove 10 years’ uninterrupted AP for reg land

A

Statutory declaration

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28
Q

What provision puts costs of passing title to B on S, if S giving full/limited title guarantee

A

2(1) LP(MP)A

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29
Q

What happens if property abuts public highway for services - what rights are there?

A

Statutory undertakers can construct new infrastructure under public roads, w/o needing easement

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30
Q

When does a positive covenant become an issue - what conditions

A

Must be indemnity covenant

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31
Q

Part X TCPA for?

A

App to SoS for order to stop up for proposed development

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32
Q

If part of land may be in AP, what is it important to check

A

SIM search to see if reg or unreg - different times of AP apply

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33
Q

What Order to move public RoW

A

Public Path Diversion Order

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34
Q

3 ways obtaining right to light

A

Deed, prescription and lost modern grant

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35
Q

What title does AP get if successful app to LR for reg land

A

Same class of title as previous proprietor

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36
Q

What Act allows LON to be registered

A

Right of Light Act 1959

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37
Q

What happens if reg proprietor opposes APs application but AP still in occupation after 2 years

A

AP must be registered - so evict asap

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38
Q

Three options if negative covenant conflicts w/ developer’s wishes

A

RC indemnity insurance, PWB consent and UT(LC)

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39
Q

How long does the proprietor and mortgagee have to oppose AP application for title to reg land

A

3 months

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40
Q

How long must 3rd be in AP of reg land

A

10 years’ uninterrupted

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41
Q

What rights does a person w/ right to light have

A

Uninterrupted use for comfortable use and enjoyment

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42
Q

What consent is required if jib of crane passing over public highway

A

Consent from Highway Authority

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43
Q

Three things to show for AP

A

Factual + adverse possession and for prescribed time

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44
Q

Two downsides of emergency interim possession order

A

Complex and costly

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45
Q

Colls v Homes ratio

A

RtL = uninterrupted light for comfortable use and enjoyment

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46
Q

When can AP still succeed even if reg proprietor opposes application

A

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

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47
Q

Four cases on remedies for obstructing RtL

A

Regan v Paul, HKRUK II v Henry, Coventry v Lawrence and Ottercroft v Scandia

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48
Q

When is a crane oversail licence required

A

If jib of crane passing over other land

49
Q

Licence that may be required due to rights of neighbours to airspace

A

Crane oversail licence

50
Q

What is the effect of s.203 HPA

A

Removes risk of injunction but compensation payable to PWB

51
Q

S.38 Highways Act for?

A

Adoption of road once constructed

52
Q

When might a restrictive covenant be an issue

A

Relates to something developer wants to do

53
Q

What should B do if road is not public, but goes into property

A

Put up clear sign to ensure not inadvertently dedicated by continuous uninterrupted use

54
Q

What is the procedure for LON

A

Serve on dominant owner, reg at LR + apply to UT(LC) for definitive certificate of reg

55
Q

What might have to happen if construction traffic into property

A

Create temporary access

56
Q

If the property does not abut the highway and has an easement, what practical consideration is there

A

LA may require user to bring up to adoptable standard, if to be adopted

57
Q

Which option is not available for positive covenants and why

A

UT(LC) - no jurisdiction over contractual matterss

58
Q

To avoid having to incur costs of adoptable standard later, what could B do

A

Agree with LA to construct to adoptable standard and for adoption on completion

59
Q

Consideration for Ts if road to be constructed to adoptable standard

A

Bond in place - if L fails, LA can use bond

60
Q

Option after RC insurance

A

PWB consent

61
Q

Can 2(1) LP(MP)A be modified? Should it?

A

Can be, but B should resist - cost of e.g. removing squatters can be high

62
Q

Who is LON served on

A

Dominant owner - owner w/ RtL

63
Q

If there is potential AP, what two things could B ask from S

A

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

64
Q

What happens if DO does not object despite LON being registered after 19 years and 1 day

A

DO deemed to acquiesce to obstruction - loses right to light as Prescription Act counts 20 years back from challenge

65
Q

What expert is appointed in RtL disputes

A

Light surveyor

66
Q

When might you go to UT(LC) for covenant

A

If PWB AWOL or unreasonable

67
Q

Two ways right to run/lay services can be acquired

A

Prescription or formal deed

68
Q

What case stated principles to value damages for obstructing RtL

A

Coventry v Lawrence

69
Q

What is an emergency interim possession order

A

Imprisonment if squatters do not vacate within 24 hours of being served

70
Q

Where to find indemnity covenant, if given

A

Proprietorship Register

71
Q

How does Bernstein v Skyviews limit right to airspace

A

Only what is necessary for ordinary use and enjoyment

72
Q

How can you identify if rights are excepted from transfer of title

A

Property Register

73
Q

For what squatter remedy must papers be served personally

A

CPR Part 55

74
Q

What should you check if tenants are occupying premises

A

Obtain copy of lease to see if contracted out of LTA ‘54

75
Q

What search to find out if roads are public

A

CON29

76
Q

Why is stopping up time-consuming

A

Need to display + serve notices, and possible objections/challenges

77
Q

When are squatters illegal

A

Only for residential

78
Q

What happens if LON not registered until after 19 years and 1 day

A

DO can object

79
Q

What happens in terms of negotiation if need to move public RoW

A

Negotiate alteration w/ seller

80
Q

2 neighbouring rights to be aware of

A

Airspace and right to light

81
Q

How long must private road be used by public w/ continuous uninterrupted use before public

A

20 years

82
Q

Does LON mean no RtL possible

A

No - does not prevent los and modern grant

83
Q

Three kinds of third party occupiers

A

Tenancies, adverse possession and squatters

84
Q

Ottercroft v Scandia ratio

A

Confirmed Coventry, but developer breached UT so injunction

85
Q

How to find out if deed for right to light has been given

A

Proprietorship Register of PWB + Charges of burdened

86
Q

What case confirmed Regan

A

HKRU II v Heaney

87
Q

What is factual possession

A

Exclusive possession

88
Q

What is the CL presumption for ownership of everything below the surface on sale

A

Passes to B

89
Q

Why are third party occupiers an issue

A

B wants vacant possession

90
Q

By when must LON be registered (so DO cannot object)

A

Reg for minimum 1 years before 19 years + 1 day of uninterrupted light

91
Q

Why apply to UT(LC) for LON

A

For definitive certificate of registration

92
Q

Under what can an app be made to SoS for order to stop up for proposed development?

A

Part X TCPA

93
Q

S.116 Highways Act for?

A

Stop up public highway

94
Q

What is the first option always to consider for negative covenant

A

Insurance

95
Q

What does AP get if 12 years’ uninterrupted AP of unreg land

A

Possessory title

96
Q

Under what provision can the LA agree to adopt a road once constructed

A

s.38 Highways Act

97
Q

What provision applies if need to move public RoW

A

S.119 Highways Act

98
Q

RtL = uninterrupted light for comfortable use and enjoyment (CASE)

A

Colls v Homes

99
Q

If there is an issue with minerals under surface (after survey), over which 3rd has rights, what options does B have?

A

Insurance, and if unsuccessful, purchase rights from PWB

100
Q

How long must 3rd be in AP for if unregistered land

A

12 years’ uninterrupted

101
Q

Under what Act is prescription for right to light

A

Prescription Act 1832

102
Q

Downside of needing to move public RoW

A

Time-consuming and costly

103
Q

What is the downside of CPR Part 55 to remove squatters

A

Must serve papers personally, expensive and time-consuming

104
Q

What part of HPA defines involvement of specified authority for 203 HPA to apply

A

205

105
Q

For what action in asserting right to airspace is there no need for loss

A

Trespass

106
Q

What is lost and modern grant

A

Showing 20 years of RtL at any point = presumed express grant now lost

107
Q

When do certain works have to be carried out prior to commencement of work on the site

A

If s.106 agreement agreed w/ LPA

108
Q

What makes positive covenants run with the land

A

Indemnity covenant

109
Q

Three downsides of UT(LC)

A

Expensive, time-consuming and result not guaranteed

110
Q

What provision applies when advising on RC insurance

A

19(1) FSMA

111
Q

Alternatives to LON (5)

A

Negotiate deed of release, redesign, buy property w/ RtL, RtL indemnity insurance, 203 HPA

112
Q

What search shows public RoW

A

CON29

113
Q

If rights are excepted under Property Register, what next

A

Survey to establish scope + extent of e.g. mines

114
Q

Continued Regan trend, despite significant demolition to comply (case)

A

HKRUK II v Heaney

115
Q

Downside of stopping up

A

Time-consuming and costly

116
Q

If 3rd party occupiers, what should happen

A

C conditional on vacating

117
Q

Case laying down right to airspace

A

Bernstein v Skyviews

118
Q

Final, last resort for RtL issues

A

S.203 HPA

119
Q

What provision to stop up public highway

A

S.116 Highways Act

ACP (12 decks)

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