Adise on principles of Land Law
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Advise Horace on the appropriate principles of property law in these two situations: 1. Horace has bought Hillview House (HH), because he likes the southerly views. The land to the south was sold by Horace's predecessor in title, Bertie, to Peregrine, a property developer. Peregrine proposes to build a six storey development of executive apartments, Pilemhi (P). Horace has told Peregrine he cannot do this because Horace has a right to the view. Peregrine laughed and ordered 8 million tons of bricks. 2. Horace's neighbour, Clarence, is a farmer who has purchased additional fields (AF) to the east of HH. Bertie permitted Clarence to cross the land of HH to reach the new fields. Clarence used many different ways across HH but they all end at a gate in the boundary fence of HH, through which Clarence reaches AF. Clarence built a tractor shed on his land close to the gate. He can only reach the shed by crossing the land of HH. Horace has put a padlock on the gate and told Clarence he may no longer cross HH's land. The law of property is a complex and intricate topic which is subject to numerous exceptions and bodies of rules. The easiest way to understand property law and in turn apply it to legal situations is to identify the key principles upon which property law is based. Primarily it is important to remember that a property right is merely a concept in land, rather than actually being the physical asset itself.
This proves difficult to establish because to define a view would inevitably restrict anybody from building anywhere in that view. In addition, whilst property can be said to be permanent, a view cannot due to there being little or no restriction to build beyond the owners land but within their view. In conclusion to the situation it would appear that there is no supportive precedent for a right to a view and as Horace would find it almost impossible to define his view as a right, there are no legal remedies to prevent Peregrine from building Pilemhi. 2. In advising Horace, it must be noted that Clarence obviously has an interest in Horaces' land due to it being the only access to his own land. The problem is what type of interest is it, is it capable of being a particular interest and how has it been created. The interest is most likely to be an easement, which is defined as being a right exercised over one plot of land for the benefit of another. However, an easement is heavily defined and for the claim to be capable of being an easement it must satisfy the four characteristics listed by Dankwerts J in Re Ellenborough Park (1956)8. These characteristics are as follows; there must (1) be a dominant and servient tenement, (2) the right must accommodate the dominant tenement, (3) the dominant and servient tenements must be owned by different people and (4)
It was held in the case of Hollins v Verney16 that a right of way used three times in twenty four years was not sufficiently continuous. Thirdly, the user must be by or on behalf of the fee simple. Traditionally at common law, an easement could only be established by prescription if it had been enjoyed from time immemorial which is set at 1189. However, courts are now prepared to accept that a right enjoyed for twenty years may constitute a right by prescription. Due to the difficulties of proving use since 1189, the courts agreed that if a right had been enjoyed for a period of twenty years or more they could presume that a deed had been granted but lost, which was deemed a lost modern grant. Finally, the Prescription Act (1832) provides the only statutory support for a prescriptive easement. The Act requires that "no act or other matter shall be deemed to be an interruption"17, therefore allowing for a claim under the act when there has been less than twenty years user, but requires that it has been for at least nineteen years and a day. In conclusion, Horace should be advised that although an easement can be proved to exist, there is little evidence that a deed ever existed, therefore Clarence is solely reliant on the method of prescription which requires prolonged and continuous use of the easement. If this cannot be proved, Clarences' only alternative would be to rely upon a bare licence which would be based upon Berties permission to use the land. This type of licence is personal, freely revocable and does not bind third parties, such as Horace.
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