Land disputes solicitors

An easement is a right benefiting one parcel of land (known as the dominant tenement) that permits the rightful users (not necessarily just the owner) of that land to access a neighbouring parcel of land (known as the servient tenement).  There are several examples of the most commonly used and well known easements:

• one that allows the underground services (water, drainage, gas, electricity, telephone and TV cables, etc) of one property to pass beneath or over the land of one or more neighbouring properties
• the private right of way or a shared driveway

Other easements may include a right to light, right of support, right to access a neighbour’s land to carry out building maintenance or utility repairs etc.

An easement may be created in a number of ways.  Usually, this is by express grant.  A Deed of Grant sets out the terms of the easement, or the grant may take the form of a clause in a conveyancing deed or a transfer deed.

An easement may be created of necessity or by prescription.  Of necessity means it may have been created over a road, track or path leading to it if that route is the only means of access between the public highway and that parcel of land provided it meets certain criteria.  An easement by prescription happens when someone carries out an act (that is capable of being an easement) repeatedly, openly and without the (potentially servient) landowner's permission for a period of at least 20 years.

An easement is very difficult to extinguish and should be thought of as existing forever.  It may be possible to vary the right of way along a new route.  This has to be negotiated with the owner(s) of the dominant tenement(s) before a Deed of Variation can be drawn up by a solicitor.

Difficulties can arise where the express Deed of Grant does not provide for the repair of the private right of way.  If the right of way falls into disrepair, then the user may repair the way but must be careful not to improve the way as it is not his land to develop.

If a dispute arises over a private right of way, the first thing to do is to check your Land Registry property title and/or conveyancing deeds to confirm that there is an easement and to check the terms of your right of way.  With luck (but this is not always the case) there will be an accurate description of the extent, shape and form of the right of way, and a statement of who is responsible for its maintenance.

Next, consider whether your rights are being infringed and the amount of inconvenience you are suffering.  Try talking to your neighbour to find out what their point of view is and then see if you can negotiate a settlement that accommodates both your needs.

If this fails, or if your neighbour is unapproachable in the first instance, and you need professional help, then consider your requirements before seeking the appropriate professional help:

• If you need someone to tell you where and how wide the right of way is, you need a chartered land surveyor
• If you need someone to interpret the legal terms of the grant of easement, or you need a declaration of your right of way and an order preventing your neighbour obstructing you from using it or an injunction to stop a neighbour trespassing on your land, you need a solicitor, and this is where we can help
• If you have a dispute with a neighbour over party walls, or need to carry out works to or near a party wall, you may need a party wall surveyor to prepare a party wall agreement

The Party Wall etc. Act 1996 provides a framework for preventing and resolving disputes in relation to party walls, boundary walls and excavations near neighbouring buildings. A building owner proposing to start work covered by the Act must give adjoining owners notice of their intentions in the way set down in the Act. Adjoining owners can agree or disagree with what is proposed. Where they disagree, the Act provides a mechanism for resolving disputes, and we can advise either party as to the legal obligations and technicalities of the dispute.

It is important to note that the Act is separate from obtaining planning permission or building regulations approval.

The main types of party walls are:

• a wall that stands on the lands of two (or more) owners and forms part of a building - this wall can be part of one building only or separate buildings belonging to different owners
• a wall that stands on the lands of two owners but does not form part of a building, such as a garden wall but not including timber fences
• a wall that is on one owner’s land but is used by two (or more) owners to separate their buildings

The Department for Communities and Local Government has produced an explanatory booklet on the Party Wall Act.

You will usually only need to use a Party Wall surveyor to advise on a party wall dispute, however if you do require legal advice, you can contact us on the details provided.

Whether it is an individual or a group of travellers who have entered onto your land without permission, or had permission to enter and then refused to leave when asked to do so, we can act promptly and issue trespass proceedings, often on the same day that you speak to us.

Whether it is commercial or residential land, we will speak with the local county courts and obtain a hearing of your possession claim often within a few days of issuing your claim. From preparing your possession claim against trespassers through to attending the possession hearing and working with the Court Bailiff, we will keep you advised throughout and let you know how much it will all cost.

Restrictive covenants can cause disputes in land negotiations in a variety of ways.  You may not agree with the restrictions being imposed if you have recently acquired the land, or you may believe there has been a breach of an existing covenant on land you own.  Covenants can impact various plans for the land, for example redevelopment, and can also lead to disputes between neighbours over boundaries.

A restrictive covenant is a legally binding agreement detailed within the Title Register that imposes a restriction on the use of the land in question.  A lack of understanding as to the restrictions being imposed is one of the most common causes of disputes regarding restrictive covenants that can lead to an injunction or significant damages to be paid. 

We are able to advise you on the enforceability of restrictive covenants, review your deeds to help you understand the full extent of the covenant in force or represent you in Court proceedings should there be a dispute or you are accused of breaching a restrictive covenant.

Village green applications can have catastrophic consequences for land owners or developers wanting to develop land. Recent court decisions appear to favour those applying to register land as town or village greens. In late 2017, the court allowed an applicant multiple opportunities to correct a defective application, despite the relevant deadline for making the application having long passed.

An application to register land as a town or village green (TVG) can be made where a significant number of the inhabitants of any locality, or of any neighbourhood within a locality, have indulged as of right in lawful sports and pastimes on the land for a period of at least 20 years and continue to do so at the time of the application.

In a small community, such applications can create deep divisions. It can slow down any development and if successful, stop the development altogether forcing developers to incur substantial losses. It can also significantly affect the resale value of the land.

If you are a developer and have encountered problems such as these, we can offer you advise on finding a remedy.