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Wednesday, 28 January 2015

Criminal Trespass Supports Adverse Possession Claim

The Court of Appeal has ruled* that criminal trespass does not prevent a trespasser acquiring title by adverse possession.

Section144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 made it a criminal offence to trespass by living in a residential building (although not a commercial building).

This was an appeal brought by the Land Registry against a High Court judgement with the same effect, as the LR was concerned a trespasser could unjustly benefit from criminal conduct.

The Court of Appeal has confirmed the High Court's view that, in enacting section144, Parliament didn't intend to produce any "collateral effect" on the settled law of adverse possession for either registered or unregistered land (which have different rules for acquiring title through adverse possession).

Adverse possession is in any case founded on the tort of trespass to land.

The public interest in having land put to good use, and in having clear rules to govern acquiring tile to land that has been abandoned, has over the years overridden concerns that a person shouldn't benefit from their unlawful actions.

The intervention of criminal law in this area was not held to make a difference to the balancing of these competing interests.

The old maxim ex turpi causa non oritur actio (no claim arises from a disgraceful cause) was excluded from the adverse possession legislation (Land Registration Act 2002) notwithstanding any criminal conduct under section 144.

Section 144 makes no reference to adverse possession.

The Court of Appeal has now clarified that section 144 and LRA 2002 operate independently of each other.

Tuesday, 27 January 2015

Government Ditches Reform of Electronic Communications Code

The government has dropped proposed amendments to the Infrastructure Bill that would have introduced a reformed Electronic Communications Code.

The Code was enacted in 1984 (as part of the Telecommunications Act 1984) to regulate land line telephone provision, but has since applied also to infrastructure forming networks which support broadband, mobile internet and telephone, and cable TV.

The Law Commission outlined recommendations for reform of the Code in February 2013, which fell short of producing a revised form of Code.

The government  took everyone by surprise when at the end of 2014 without warning or consultation it produced a last minute amendment to the Infrastructure Bill to incorporate an entirely new Code.

The British Property Federation however has voiced its frustration at the sudden withdrawal of the new Code.

Despite harbouring concerns about some provisions within the new Code, the BPF praised it for being broadly very sensible, and would now like to see it subjected to a full period of consultation before being drawn up and enacted.

The government has not said whether it will consult on the proposed reforms to the Code in the future.

For now, the Code will remain in its current form.

Thursday, 22 January 2015

Chancel Repair Liability - No Change Imminent

The first reading of a bill introduced last year to abolish chancel repair liability (CRL) in England took place in the House of Lords last week.

The bill states “No person shall after the commencement of this Act be liable as lay rector for the repair of the chancel of any church or chapel.”

CRL is an ancient law that can force homeowners to pay for ancient Anglican parish church repairs - you can read more about it on this blog.

Anyone hoping for a swift change in the law before the General Election however is in for a disappointment.

Following a short debate, in which several members of the Lords spoke eloquently in favour of abolishing CRL - and told some interesting stories of the struggles of many people deemed lay rectors to have the liability removed from their properties - Lord Ashton made it clear the government has no current intention of reform.

Here are extracts from Lord Ashton's short reply:

I listened carefully to the concerns expressed about chancel repair liability and I am sure that the Ministry of Justice will consider them in detail, but I must make clear—I trust that this will not come as too much of a shock to noble Lords, except, perhaps, to the noble Lord, Lord Kennedy—that the Government have no plans to change the law at present. None the less, it is because we take the concerns seriously that we are keeping the situation under review.

The present legal position is that chancel repair liability is an ancient but valid right that enables the owner, who, in England, is usually the PCC, to enforce the liability. This right can play an important part in the finances of the 5,000 or so churches with the benefit of the liability. In earlier times, the main problem was that the liability was sometimes difficult, if not impossible, for a prospective buyer to discover. Now, following the removal of its status as an overriding interest in October 2013, its existence is readily discoverable. This is a major improvement, as my noble friend Lady Wilcox said.

Practitioners will take issue with the phrase "readily discoverable".

The risk of CRL remains until a transaction is registered at the Land Registry, hence the continuing need for CRL insurance where a potential  risk has been identified by a CRL search.

CRL searches are not conclusive as that would require extensive research of ancient archives.

And where properties have not changed hands since October 2013, the possibility of CRL liability also remains.

Where the Church has registered its interest, properties are blighted forever.

Where the Church hasn't registered its interest, the risk remains until a new owner is registered at the Land Registry following a transfer for value.

Friday, 5 December 2014

Law Commission Publishes Reforms to Rights to Light Law - Will They Ever See the Light of Day?

The Law Commission has published its long awaited proposals for the reform of rights to light law.

But will they ever see the light of day?

The Commission began its project in March 2012 and published a consultation paper on 18 February 2013. 

The final report, Rights to Light (Law Com No 356), published on 4 December 2014, contains its recommendations for reform, and also a comprehensive explanation of how the often complex and confusing laws operate today.

The Commission's key recommendations are:-

·         A statutory notice procedure which would allow a landowners to require their neighbours to tell them within a specified time if they intend to seek an injunction to protect their right to light, or to lose the potential for that remedy to be granted.

·         A statutory test to clarify when courts may order damages to be paid rather than halting development or ordering demolition.

·         An updated version of the procedure that allows landowners to prevent their neighbours from acquiring rights to light by prescription.

·         Amendment of the law governing where an unused right to light is treated as abandoned.

·         A power for the Lands Chamber of the Upper Tribunal to discharge or modify obsolete or unused rights to light.

The report is a masterly and worthwhile attempt to try and tackle this contentious subject.

Responding to replies to its consultation head on, the Commission seeks to strike a balance between private rights to light and development that's in the public interest.

The protection of light in the context of planning law is outside the scope of the report and the Commission makes no recommendations about it.

So why the scepticism?

The report concludes that the recommendations will not take effect in full unless and until the government responds to, and gives effect to, the recommendations made in the Commission's 2011 report, Making Land Work, which has been gathering dust ever since.

This week's report says the Lord Chancellor reported to Parliament in May this year that the government intends to respond to the 2011 report in 2014.

There's not much time left for that promise to be fulfilled...and then of course there's the small matter of an election next year too.

Meanwhile, the report is an excellent place to start for anyone trying to get to grips with this subject.