Conveyancing Blog
Conveyancing Blog

The Conveyancing Blog

More than buying or selling your home!



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Written by Chris Brierley

July 7th, 2015 at 11:59 am

Posted in Conveyancing

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Claims For Rights Of Way – How To Defeat Them

Paul Trincas

Paul Trincas

Paul Trincas, a litigation specialist with law firm, Charles Lucas & Marshall, highlights a recent Court of Appeal case which gives welcome direction for landowners – and means they can avoid the expense and uncertainty of litigation.

Landowners can find themselves in a situation whereby a third party claims to have a legal right of way over their land on the basis that that third party has used the land before, perhaps to get from A to B.

The legal position is that the third party is able to legally obtain right of way over the land provided that third party can establish they have used the landowner’s land in such a way, ‘uninterrupted’ for a period of 20 years or more.

Where a dispute occurs under these circumstances, the case tends to end up in court.

However, litigation is expensive, and fraught with risks and uncertainties.

How can a landlord, faced with such a claim, prevent a claim for right of way being brought ?

A recent landmark Court of Appeal decision has provided a welcome solution for landowners – and one which means they will avoid the risk of litigation.

In Winterburn v Bennett [2016] the case arose in the context of a parking dispute. In this case, a Conservative Club owned land with a substantial car park. An adjoining business had become accustomed to using the Club car park up to nine times a week for unloading and loading goods delivered to their business.

Further the business’s customers commonly used the car park. The Club had a sign at the entrance to the car park stating ‘Private car park. For the use of Club patrons only.’ 

Additionally, there was a similar sign in the window of the Club. Apart from the signs, no further attempt had been made by the Club to restrict the use of the car park. The Club was then sold to new owners, whose tenant prevented access to the neighbouring business. The neighbouring business took legal action to protect what they considered a right to use the car park on the basis that they and their business customers had used the car park, without interruption, as of right, for in excess of 20 years.

Although the court heard technical legal arguments, the main point to note is that the Court decided that the putting up of such, inexpensive, signs, by the landowner, indicating that a certain activity is prohibited, is sufficient, without having to resort to litigation, to defeat a claim for rights based upon 20 years usage.

This decision will therefore apply to other situations where a third party seeks to claim a right of way over a landowner’s land. All the landlord has to do is to put up relevant signage indicating that such use is prohibited and this will ‘interrupt’ the 20 years usage and thereby defeat the claim. This decision will be welcome to landowners who wish to prevent such rights being claimed over their land.

For further information contact Paul Trincas on 01635 521212 or paul.trincas@clmlaw.co.uk

Written by Paul Trincas

September 19th, 2016 at 1:19 pm

Ask the Question

A recent case has highlighted the need to ‘ask the question’ when buying property.

Ask the Question

Ask the Question

A purchaser of land claimed that the vendor had informed him orally that certain planning permissions had been granted in respect of the land without which the land was worth a great deal less. After the purchase was completed the purchaser discovered that in fact the planning permissions had not been granted. The vendor denied he had made such a representation but the court was inclined to accept the purchaser’s side of events. However, they also ruled that the purchaser had no remedy.

The reason for this was that the purchase contract included a provision, which is in virtually all property contracts, that representations by the vendor could not be relied on by the purchaser unless contained in a written response by the vendor’s solicitor to an enquiry raised by the purchaser’s solicitor.

The purchaser argued before the court that this was an unreasonable clause and should be struck out in light of the Unfair Contract Terms Act. The court held that the clause was effective and as this had not been confirmed by the vendor’s solicitors as required by the contract the purchaser had no remedy.

The moral of the story is if in doubt ask us to ask the question.

Further details please contact Malcolm Poynter on 01635 521212 or malcolm.poynter@clmlaw.co.uk

Written by Malcolm Poynter

November 8th, 2013 at 3:03 pm

Liability to repair a church

Since Henry VIII’s dissolution of the monasteries some properties come with a liability to contribute to the repair of the chancel of a Church.  This applies to all types of property and can be a significant liability.

Malcolm Poynter - Managing Partner

Malcolm Poynter – Managing Partner

Until the 13th October 2013 this liability passed with the land even if not mentioned anywhere in the title.

There was a famous case in 2003 where a Mr and Mrs Wallbank were handed a bill for £95,000.00. The validity of that bill was upheld by the House of Lords but they also had to pay both parties costs which were many times that.

As from the 13th October 2013 this liability will cease to apply to property once it is sold to a purchaser for valuable consideration and provided the liability has not previously been noted on the title. Thus property passing by gift or by will, for example, can still be bound by this liability.

There is a simple search that can be carried out which indicates whether properties in any particular parish could possibly be liable. If you have not bought your property in the last few years then it may be worth considering carrying out such a search. If it is in such a parish then insurance is available for a one-off premium. A full search should never be carried out without legal advice.

Although the Parochial Church Councils are responsible for registering a note of these rights against titles it appears few have done so. There have been no reports of claims since the unfortunate Wallbanks. However, the consequences are severe and insurance relatively cheap.

Further details please contact Malcolm Poynter on 01635 521212 or malcolm.poynter@clmlaw.co.uk

Written by Malcolm Poynter

November 1st, 2013 at 3:12 pm

Shared Ownership

Shared Ownership homes offer an affordable way of getting on the property ladder.

The scheme is normally run through a Housing Association, who will own the freehold and you will then purchase a share i.e. 25%, 50% and 75% and pay a rent on the remaining share to the Housing Association.  By doing this you have the same rights as a full home owner but at a more affordable cost.

The process would be:

• Contact the Housing Association involved with the property.
• They will check that you meet the criteria for their scheme
• They normally have financial advisors they can recommend so that you can arrange your mortgage for the percentage you wish to purchase
• They normally require a 10% deposit to proceed.
• The Housing Association will instruct their Solicitors and then they will send a Lease to the Solicitors of your choice and the works will proceed.
• You will need to have searches carried out on the property i.e. local search, drainage, environmental and chancel search.
• Throughout the process ensure you raise any queries you may have so that they can be resolved prior to completing.

Every owner will enter into a Lease with the Housing Association which will have certain restrictions and responsibilities that you have to abide by.  The Lease will also inform you of how much rent and service charge you have to pay to the Housing Association and what that payment will cover e.g. cleaning of communal areas etc.

We also work with a Housing Association who deals with people that have learning disabilities or mental health problems to be able to live in their own homes on a shared ownership basis and their benefits assist them with this.

You also have an opportunity of purchasing more shares in your property; this process is called “staircasing”.  By doing this it will obviously reduce the rent payable.  You will still have to abide by the regulations etc set out in the Lease you originally signed.

If you have any further queries please do not hesitate to contact Lynsey Hart on 01235 771234 or by email lynsey.hart@clmlaw.co.uk.

Written by Lynsey Hart

April 11th, 2011 at 11:12 am