The Practical Lawyer

The Supreme Court has held that it is not possible to make a possession order in respect of land that is not yet occupied by trespassers.

The case involved travellers who had camped in a Forestry Commission wood; the Secretary of State then applied for a possession order and injunction in respect of that wood, but also 13 other woods to which it was thought the travellers might move. A possession order was refused, although the court did make it clear that this did not mean that ‘when trespassers are encamped in part of a wood, an order for possession cannot be made against them in respect of the whole wood’. But, what is less clear is where the crossover point lies. For instance could it be asking too much to try to get possession of a 3000-acre estate when travellers have set up a camp on a field in the middle of it? According to Lord Neuberger, that may well be the case, and claimants should not be over-ambitious when defining land in a possession claim.

The basic principle is that you cannot enforce a positive covenant. But, there is an exception under the ‘burden and benefit’ rule (ie if someone takes a benefit, then they may be bound by the accompanying burden). The classic example is ?Halsall [1957] where a conveyance gave a right to chattel over private roads, and contained a duty to pay a contribution towards maintenance costs. It was held that the buyer could not use the right of way (the ‘benefit’) unless it also accepted the corresponding obligation to pay the maintenance (the ‘burden’).

For a restrictive covenant to be enforceable by a successor in title, there are two requirements: (i) the land benefiting must be identified, and (ii) the benefit must have passed to the person trying to enforce it (by annexation, assignment, or by there being a building scheme).

A recent case involving a share purchase agreement serves as a useful reminder of the importance of strictly adhering to conditions for completion as set out in the contract.

The particular contract included precise notification obligations. On the facts, although substantial completion had taken place before the contractual completion date, the fact that the seller had not served the required notices meant that he could no longer enforce the contract.

The classic definition of ‘nuisance’ was given in a 19th century case as ‘an inconvenience materially interfering with the ordinary physical discomfort of human existence’. So, for instance, an activity that causes excessive noise, dust or smoke might well be a nuisance.

‘Annoyance’ has no technical legal meaning, but it is clearly wider than ‘nuisance’. In another 19th century case it was described as anything which ‘really does bring an objection to the mind of a reasonable being’ or ‘reasonably troubles the mind and pleasure, not of a fanciful person or of a skilled person who knows the truth, but the ordinary sensible English inhabitants of a house’. Note that there need not be any ‘physical detriment to comfort’.

Suppose you are buying land from a company, but then discover that the company has been struck off. What do you do? The answer is that the company needs to be restored to the Register of Companies (ie so it is no longer dissolved).

Two recent CA decisions on the use of rights of way to allow access to development land. Together, they show a non-restrictive approach:

The Supreme Court has upheld the right of a developer to connect to a public sewer, even if the statutory undertaker is concerned that the additional discharge will overburden the sewage system. The cost of any necessary works will fall on the sewage undertaker (and not on the developer).

In reaching this decision, the Supreme Court has confirmed the earlier decision of the CA. Under Water Industry Act 1991, a property owner is entitled to be connected to a public sewer, provided that notice is first given under s106. The sewage undertaker then has 21 days to refuse permission, but that can only be done on the basis that (i) the proposed connection would be prejudicial to the sewage system, or (ii) the private drain is not up to the standard reasonably required. What the Supreme Court has done is to confirm that this is an ‘absolute right’ and that the provisions of the Act must be construed strictly. In particular, the sewage company can only refuse a connection if that refusal is based on the mode of construction or condition of the private drain. The undertaker cannot require the connection to be at a particular point, and the fact that the connection will cause over-capacity of the sewage system is not relevant. Likewise, the 21-day time limit will be strictly applied.

At the same time, the case does highlight that the existing procedures are flawed (the 21-day period is too strict; it should be possible to require the sewage system to be upgraded before it becomes overloaded). The practical way around these problems is for the local planning authority to enclose conditions in the planning consent (eg preventing the developer from connecting to the public sewer until it has been upgraded). Thus, the answer lies in planning conditions. Barratt Homes v Welsh Water [2009] UKSC 13 (access free at www.practicalconveyancing.co.uk). Source: www.practicallaw.com (subscription service).

Insurance may seem the easy way of side-stepping the potential problems raised by a restrictive covenant. But, do bear in mind that:

it is very difficult (or, at least very expensive) to get cover prior to the grant of planning permission. In practice, development funding is often sought before the planning application has been submitted, which can cause problems;

cover will often not be available if the covenant is less than ten years old;

any approach to the person having the benefit of the policy will usually mean that cover is not available.

See [2009] SJ December (Property Supplement) 16.

A mortgagee can obtain possession either by court order or by peaceable re-entry. Once in possession, the mortgagee can choose whether or not it wants to sell the property, and there is no obligation to consult with the mortgagor. Subject to an overriding duty to maintain the property and keep it in good repair, the mortgagee can therefore hold onto the property for as long as it wishes (eg until the property market recovers). In short, there is no obligation on the mortgagee to sell within a reasonable time.