APC Access Flashcards

1
Q

What are the access rights afforded under the New Code?

A

Immediate access in an emergency
access on reasonable notice all other times (48 hours suggested by OFCOM)
statutory right to access land/buildings for survey
CTIL v the University of London (2020) - Interim rights can be sought for access to MSV.

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2
Q

What is the difference between a wayleave and an easement?

A

A wayleave is granted to the person who owns the land and is terminable.
An easement relates to the land itself and is permanent.

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3
Q

What is a restrictive covenant?

A

A binding condition written into property deeds or contract to determine use of a property. Common examples:
- prevention of alterations
- prevention of new structures being erected
- preventing business from operating on the land

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4
Q

How would you release a restrictive covenant?

A

If all parties benefitting from the covenant agree, a Deed of Release can be completed.
Some RCs can be removed by an application to the Upper Tribunal.

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5
Q

What is a Charge (on LR)?

A

Details of a burden on a property,
e.g. restrictive covenants, positive covenants, easements, mortgages.

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6
Q

What is a positive covenant?

A

A binding condition that obliges the undertaking of positive action in relation to property, usually requiring expenditure. Common examples:
- building / maintenance of a boundary fence
- responsibility for maintenance of parking area or access route.

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7
Q

How does a positive covenant mechanism differ from a restrictive covenant?

A

PCs don’t usually ‘run’ with the land and so can’t be enforced by successors in title, unless via an established conveyancing device or explicit inclusion in a contract.

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8
Q

What is the purpose of tools like MAGIC?

A

Mapping software tools can be used to undertake thorough desktop analysis of areas.

MAGIC is run by DEFRA and can be used to identify land designations which could impact development (SSSI, AONB, NSA, protected habitat etc.).

Other mapping tools - Promap, NGRFinder, Google Earth

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9
Q

What rights could be granted in an Agreement in relation to wayleave requests?

A

Requirement to assist the Tenant in entering into any necessary wayleaves to support the running of the Equipment.

Route to be agreed with Landlord (CNTBUWOD or absolute)

Limited of number of wayleave requests to be progressed in a given period

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10
Q

Common routes of legal recourse in relation to wayleave acquirement?

A

ADR mechanism e.g. arbitration or mediation
Legal enforcement of rights
Damages claim due to lack of connectivity
Under duress / WP / goodwill payments to facilitate approval process

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11
Q

How does an asset transfer work?

A

Legally transfers ownership of a property from seller to purchaser.

Usually SAS, no recourse if asset is not as valuable as believed.

Documented via an Asset Transfer Agreement signed by both parties.

As part of an ATA, if relevant the landlord can request an AGA from the seller to support the suitability of the new tenant (purchaser).

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12
Q

Why would an unsuitable vehicular route have been historically agreed?

A

Lack of foresight, quick completion deadline.

If a sharing agreement as in this case, use of historic access right with no option for improvement.

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13
Q

Explain the differences between access rights in older forms of agreement, and those provided for under the new Code.

A

Access protocols and restrictions much more common in older forms of agreement - standard access fees, requirement for accompaniment, long access request approval process.

Now only restricted where there is a verifiable need for the Landlord to do so - occupational safety, commercial impact etc.

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14
Q

Why would the access and land rights under a lease be different to those under a licence?

A

A lease provides exclusive possession of the legally agreed demise, whereas a licence allows for the placement of equipment only with no legal relationship created. Therefore licence access can be much more restricted than lease access.

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15
Q

How are easements created?

A

Granted / Express
or
Implied, via:
* Necessity
* Intention
* Prescription

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16
Q

What is the key legislation for easements in conveyancing?

A

Law of Property Act 1925 (Section 62)

16
Q

What are the characteristics of an easement?

A
  1. linked two pieces of land
    (dominant and servient)
  2. Must accommodate the dominant tenement
  3. owners must be different persons
  4. must form the subject matter of a grant.
17
Q

Key case law for easements (common intention)?

A

Wheeldon v Burrows
disposition of land in common ownership
confirms intention principle.

18
Q

Key case law for easements (rights of way)?

A

Harris v Flowers and Sons
right of way granted for access to dominant land cannot also be used to access adjoining or neighbouring property.

exceptions have emerged through other case law where adjoining land is ancillary to the use of the dominant land (National Trust v White 1987)

19
Q

What are the remedies for interference with an easement?

A
  1. Court declaration
  2. Injunction
  3. Damages
  4. Abatement
20
Q

How can an easement be discarded?

A

Abandonment
Alteration of the dominant land
Unity of ownership
Express deed of release

21
Q

What are the rules for adverse possession applications?

A

Must be able to prove use of the land for over 10 years (registered) or 12 years (unregistered).

22
Q

How are prescriptive easements and adverse possession different?

A

Adverse possession requires a claim of occupation and ownership, prescriptive easements can be claimed by continuous use of land over at least 20 years.

23
Q

Discuss Ellenborough Park 1955 case.

A

the decision created the four requirements for an easement to be granted:
1. dominant and servient tenement
2. accommodate the dominant
3. different owners
4. capable of being a grant.

24
Q

What does the Neighbouring Land Act 1992 cover?

A

Access is to be allowed to neighbouring land in order to carry out works for the preservation of an persons property.

25
Q

Date of the Land Registration Act?

A

2002

26
Q

What is a ransom strip?

A

a piece of land retained upon the sale of a property / estate.

27
Q

What is the curtain and mirror principle?

A

Land registration

Mirror principle - all facts relevant to the title are to be found on the register.

Curtain principle - purchasers need not look beyond the register to see what interests bind the land and are not concerned with trusts over the land.

28
Q

What are the three main parts of a register?

A

Property Register
(leasehold or freehold)

Proprietorship Register
(current / registered owner)

Charges Register
(burdens on the estate aka notices)

29
Q

What does land registration mean for the owner?

A

you are deemed to have the legal estate
(Land Registration Act 2002, S.58)

you have valid title to the estate regardless of activities like fraud.
(Fitzwilliam v Richall Holdings 2013 fond fraudulent registration does not confer title)

30
Q

EXAMPLE 1

A

wayleave resistance

31
Q

What is tort?

A

Civil wrongdoing e.g. trespass, interfering with quiet enjoyment, damage

32
Q

What is injurious affection?

A

Cost impact on land of a stat power on it.
e.g. Part 1 claim from a Landlord for loss due to stat powers could be injurious affection basis.