Van McKellar | Partner

Walk this Way?

In any property dispute, our starting point is the parties’ title deeds.

Why? Because that should establish exactly the parties’ properties – exactly the extent of the land owned by each. The titles in turn are also a starting point as to any burdens affecting each property – limiting the property owners rights by giving rights to a third party over the land. But the law involves more than just the bare terms of the parties’ titles; it’s a common misunderstanding that if there’s nothing in a title deed otherwise, the property isn’t otherwise burdened. That’s not the case.

One good example, and a situation we’re commonly representing clients in court about, is that involving servitude rights. A servitude is a right of one land owner to carry out activity on an another person’s land. A classic example is a servitude right to take access (a servitude of way). These servitudes might be recorded in parties’ title deeds, but the fact that the title deed is silent is not the end of matters. A servitude might be capable of implication in the circumstances, and also might have been created by ‘positive prescription’ – which means that the right has been exercised openly, peaceably and without judicial interruption and as of right for 20 years and so created). Many court actions are pursued about whether a servitude exists and/or the extent of rights created by any such servitude.

We’ve recent experience of another and far less common example – that of a property being burdened by a public right of way. Again, while possibly explicitly mentioned in a land owner’s title, the fact that a public right of way is not referred to in someone’s title deed, does not prevent the right being proved to exist. So a property can be burdened, even if the title deeds are silent, because the public have the right to pass from one public point to another along a definite route. That was the argument our client faced recently and the court’s decision is now awaited. No right of way was set out in the client’s title deed. Their position is that the land is private and the public has no right to access same. Someone argued otherwise and so the issue for the court is whether that other party, who argued a public right of way exists, has proved the various required elements. These include that a definite route exists over our client’s land; which route runs from one public place to another public place; and which route has been used by the public; and which use has been of such a character as to show a right was being asserted; and which use was also continuous, open, peaceable and without judicial interruption; and all of which use had been for the required 20 years. In our recent case, we conceded certain of these points, but our client’s defence maintained through the trial hearing, is that as all the points need proved and could not be, the contended for public right of way did not exist and their land should not be found to be so burdened. We await the court’s decision with interest!

If you have been involved in a property dispute and are looking for some advice, please contact us online by clicking here or speak to a member of our specialist team on 0333 222 1855.

Van McKellar

Van McKellar

Dispute Resolution Team

“I see my role as a problem solver – seeking to understand the factual basis of my clients’ disputes and applying a legal and commercial analysis in seeking to resolve them, whether by negotiation or by means of litigation or some other alternative means of dispute resolution.”

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