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View the related checklists about Lost modern grant

Checklist for the creation and registration of easements

Checklist for the creation and registration of easements This Checklist looks at how easements are created and how they must or may be registered at HM Land Registry. It includes the following key sections: • Is there an easement? • Is it a legal easement? • Has the easement been created by express grant? • Is the easement an express grant contained in a deed of grant or transfer? • Is the easement contained in a lease? • Has the easement been created by implied grant? • Has the easement been created by presumed grant? • Is the easement an equitable easement? • Is the easement an overriding interest? • Rights other than easements An application to HM Land Registry for registration of an easement may need to be accompanied by evidence of third party consents or of compliance with a restriction on title. These are not dealt with in detail in this Checklist; see Practice Notes: Mortgages and land—dealings with land subject to a mortgage or legal charge and...

Rights of light—due diligence and risk mitigation—checklist

Rights of light—due diligence and risk mitigation—checklist This checklist sets out the steps a developer should take when carrying out due diligence on rights of light and the ways a developer may mitigate the risk of an injunction being obtained. A right of light is an easement that entitles a landowner to receive natural light through an aperture in a building on their property. The owner of the land burdened by the right of light cannot interfere with it without consent. As such on any proposed development it is crucial to identify: • whether there is a nearby building with a right of light—see Practice Note: Establishing and maintaining rights of light • the impact of the proposed development on those rights of light—see Practice Note: Rights of light claims • the remedies available to the person with the right of light—see Practice Note: Rights of light claims A strategy must be put in place for dealing with any such rights, in conjunction with a specialist rights of light surveyor....

View the related practice notes about Lost modern grant

Acquisition of easements by long use

Presumed grantAn easement may be established by long use:•at common law•under the doctrine of lost modern grant (a species of common law prescription)•by statute (under the Prescription Act 1832 (PA 1832))The doctrine of prescription is a mode of establishing an easement, not creating one. It is based on the presumption of a grant, ie that the easement has validly existed before the claim is made, but has been lost or destroyed. The presumption arises from the fact of enjoyment of the right, so a right claimed by prescription must be capable of being an easement ie:•there must be a dominant and a servient tenement•the easement must accommodate the dominant tenement•the dominant and servient owners must be different persons, and•the easement must be capable of forming the subject matter of a grantThere is no requirement that time cannot start to run, for the purpose of a prescription claim, unless the servient owner could bring an action in trespass against the dominant owner.Common law prescriptionCommencement of legal memoryPrescription at common law is...

Profits à prendre

This Practice Note explains what a profit à prendre is and what the different types of profits are, how they can arise and how they can be terminated and which ones are most likely to be encountered in practice. It also touches on profits à prendre in due diligence and how profits may be protected by registration at HM Land Registry.Introduction — what is a profit à prendre?A profit à prendre is the right to take natural resources from another person’s land. Examples of profits include:•parts of the land itself such as sand, peat or minerals•products growing on the land such as grass or timber—this includes grazing rights•wild animals such as fish or game The most commonly encountered profits in practice are shooting rights and fishing rights (often referred to as sporting rights).The products taken must be capable of ownership so there cannot be a profit of water (unless it is contained in a tank or other receptacle).Profits can be enjoyed as:•several profits (or profits sole) which are enjoyed by...

View the related precedents about Lost modern grant

Letter of instruction to rights of light surveyor—instructed by proposed developer

Letter of instruction to rights of light surveyor—instructed by proposed developer PRIVATE & CONFIDENTIAL [insert name and address of surveyor] [insert date] Dear [insert name of surveyor] [insert case heading] INSTRUCTIONS TO ACT AS RIGHTS OF LIGHT SURVEYOR CONFIDENTIAL AND LEGALLY PRIVILEGED LETTER OF INSTRUCTIONS/TERMS OF ENGAGEMENT I act for [name of client] in connection with the property known as [property description] (the Property) of which my client is the leasehold/freehold [delete as applicable] owner registered at HM Land Registry under title number [insert title number]. I write to confirm my client’s instructions to you to provide a report, along with any follow up reports and/or advice requested (the Report), and potentially in due course to act as expert in any court proceedings, in connection with rights of light issues at the Property arising from the proposed redevelopment of the Property (the Proposed Redevelopment). You have confirmed that you are a qualified rights of light surveyor and are well versed with being an expert surveyor in...

View the related q&as about Lost modern grant

Can a right of light be established pursuant to the Prescription Act 1832 based on 25 years' uninterrupted access and use of light, despite the windows then being boarded up internally for ten further years? If not, when is the right acquired?

Can a right of light be established pursuant to the Prescription Act 1832 based on 25 years' uninterrupted access and use of light, despite the windows then being boarded up internally for ten further years? If not, when is the right acquired? This question raises the issue of the effect of boarding up, or otherwise obstructing windows, on a claim to a right to light. For a right to light to arise by prescription, whether under common law, lost modern grant, or the Prescription Act 1832 (PA 1832) there must be actual enjoyment of the light through defined apertures. In Smith v Baxter, it was held that boarding up of two windows prevented them enjoying the right to light (although shelving in front of a third, which allowed substantial light to pass, did not have this effect). Similarly, in Tamares v Fairpoint, two windows which had been covered with panelling on the inside did not acquire rights to light. In the case of a claim under PA 1832,...

A person has exercised a right of way for 40 years. About 18 months ago the owner of the land fenced off the access. Does the fact that the use of the right of way was disrupted for more than a year mean their claim is defeated, ie once a right of way has been exercised for at least 20 years, is it indefeasible?

A person has exercised a right of way for 40 years. About 18 months ago the owner of the land fenced off the access. Does the fact that the use of the right of way was disrupted for more than a year mean their claim is defeated, ie once a right of way has been exercised for at least 20 years, is it indefeasible? A right of way is a type of easement and may, like other easements, by acquired by prescription. Prescription may arise at common law, under the doctrine of lost modern grant, or under the Prescription Act 1832 (PA 1832). When a claim is made under PA 1832, 20 years' use will suffice to establish a claim by prescription, and use of the way for a period of 40 years renders the claim absolute. It can then only be defeated where it is shown that there was consent or agreement

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Property weekly highlights—19 August 2021

This week's edition of Property weekly highlights includes: the latest on the impact of the coronavirus (COVID-19) pandemic, a Supreme Court decision on solicitors’ undertakings and a case on lost modern grant.

Property Disputes weekly highlights—19 August 2021

This week's edition of Property Disputes weekly highlights includes: an update of recent court measures and guidance on coronavirus (COVID-19), a consideration of the government’s plans for dealing with pandemic-related commercial rent arrears, High Court cases on the removal of a boathouse from land in Hyde Park, specific performance of a sale agreement and whether an oral property management agreement resulted in a proprietary interest or a partnership agreement, and an Upper Tribunal case on ‘occasional’ use of a right of way.