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Tuesday, 22 November 2011

Litigants in Person: DIY Law (and Lease Mergers)

I’m enjoying Garrows Law, currently in its third season and being broadcast by the BBC on Sunday evenings.

For anyone with a passing interest in the development of the English legal system it makes interesting viewing. I particularly like the judge exhorting the jury to “get on with it” after about 10 seconds of deliberation on a capital offence; a deliberation which takes place in a courtroom huddle in full view of everyone (like they’re organising a whip-round rather than a hanging).

I’ve no idea how accurate it is (not very, according to Professor JR Spencer of the University of Cambridge), but like m’learned friend Charon QC, I’m not that bothered either. Sunday evening is better spent hoovering up the dregs from lunchtime than fretting over historical accuracy.

We don’t hang people for petty theft or causing criminal damage any more (at least not at the time of writing), but it seems we are at a tipping point so far as access to justice is concerned. Legal aid in criminal cases is really only available now to those on benefits. In civil cases, we face the prospect of thousands more people having to represent themselves in court once civil legal aid has, like most of the defendants in Garrow’s day, bitten the dust.

These are the so-called litigants-in-person.

The implications of the dwindling availability of professional representation in court are considered in a very well- written piece by Adam Wagner on the UK Human Rights blog.

Adam discusses the major new report issued by the Civil Justice Council called Access to Justice for Litigants in Person (or self-represented litigants). It is a major and ambitious attempt to make the justice system fairer and simpler for people who go to court without a lawyer, although as Adam concludes, it’s a moot point whether there will be the will or the money to carry out the transformation that the justice system really needs.

For the DIY lawyer, the labyrinthine, and often positively Kafkaesque, procedural complexities of our court system are bewildering and well nigh impossible to navigate. It often takes up a great deal of court’s time trying to help them through the legal maze.

Information about the law can also be hard to get hold of, notwithstanding the vast amount that can now be discovered on the internet. As Adam points out, at the moment, online information for litigants is split between the Directgov website (which is not very user friendly and often seems inadequate), the court services and the Ministry of Justice. There are also the websites of the other government departments and the excellent Bailii for reported cases, but the latter is a charity dependent on the benevolence of others to keep it going (and long may it continue). The sources of information on the internet are generally very fragmented.

Even so, sometimes the little guy can beat the system.

This talk of litigants-in-person reminded me of a property law case a few years ago where a litigant-in-person not only won his case in court – and the Court of Appeal at that - but also caused the Land Registry to have to rewrite one of its practice guides as a result.

In Wall v Collins [2007] EWCA Civ 444 Mr Wall claimed he had a right of way along the passageway beside his house in Bolton. The Land Registry told him it had ceased to exist, but Mr Wall, representing himself, was having none of it.

When a leaseholder buys the freehold, the lease “merges” into the freehold, which usually means it disappears. This case concerned the question of what happens to rights that were granted by a lease after that lease has merged with the freehold.

It’s a highly technical issue, but one that was pursued by Mr Wall with a tenacity and refusal to be defeated often found in litigants-in-person.

Established legal thinking at the time was that when a lease merges with the freehold, any easements or covenants attached to the leasehold interest are extinguished. It had therefore become common practice in some instances to provide that the lease did not merge when the freehold was acquired in order to ensure that the benefit of the rights would not be lost. This was a bit cumbersome however because it left a lease in place that nobody really wanted.

Mr Wall’s lease had already merged, so he could not take advantage of this practice. Mr Wall instead argued, and the Court of Appeal agreed, that the practice was unnecessary. The court decided that when a tenant has an easement, the easement relates to the property, but not to any particular interest in that property.

The easement exists in its own right, it has a life of its own, and can remain even after the lease that created it has ceased to exist, although only for the remainder of the term for which it was originally granted.

All of which might sound a bit existential. However, what it meant for Mr Wall was that he could continue to use a passageway by virtue of an easement that had been granted by a lease as long ago as 1910 (which was merged with the freehold in 1999), and as the term of that lease was 999 years, Mr Wall had a right of way that would outlive him, the life of his house, and in all probability western civilisation itself.

That was one in the eye for the legal establishment, as well as the Land Registry who, rather embarrassingly for them, had to write an addendum to Practice Guide 26 on lease determination, correcting their error. It’s now referred to in paragraph 4.4 of the current Practice Guide 26. Note that the Land Registry won’t automatically note these rights on the registered title; you have to ask them to do so when the lease is merged.

What if the rights only last for a short time, say 5 years? That’s not much use to a freeholder.

The Court decided, in Wall v Collins, that the right could be converted into a permanent right under section 62 of the Law of property Act 1925, which says that a conveyance or transfer of land is deemed to include all easements and rights used with the land. Short term rights can be converted into permanent freehold rights in this way. However, a word of warning, section 62 is often disapplied as a matter of course in modern conveyancing precedents. If you are a tenant buying your freehold, you might therefore want to delete any exclusion of section 62.

Oh dear. I’ve managed to meander from a discussion on fundamental rights concerning access to justice to a conveyancing technicality. Mea culpa (which for younger readers is Latin for “my bad”).

Mr Wall was clearly up to the task.

Many people facing more serious blights on their lives, left to drown in the rising tide of ever more new law, might not be so skilled or even so lucky.

Tuesday, 15 November 2011

Boundaries – Presumptions and Myths

Land often sits alongside physical features such as rivers or streams; lakes or the seashore.

Or there may be man-made physical boundaries, often dating back centuries, such as hedges, roads, canals and fences.

Who owns these features and boundaries? Who is responsible for them?

Often old title deeds or the modern computerised title registers won’t say anything about them. Or the title plans will be drawn to a scale which is too small to be of any use when trying to find out who owns, say, a fence. The thickness of a line on a standard Land Registry plan represents about 3 feet (nearly a metre) on the ground.

Into this void step various “presumptions” which have been established down the years and one or two myths as well. These conventions have a complex history, but here is a brief summary of some of the main presumptions which apply if the deeds cannot assist.

Rivers and streams (non-tidal)

The owner of a property that abuts (sits alongside) a natural non-tidal river or stream (known as the “riparian” owner) also owns the bed of the river up to the centre line and if the course of the river or stream changes naturally, the boundary is presumed to change with it. You can’t cheat though and alter the course of the river yourself to land grab; changes made as a result of human agency do not alter the line of the boundary. The boundary will also not change if the watercourse changes quickly, for example after heavy rain. Ownership of the bed will usually also entitle you to fish, unless fishery rights have been granted to someone else. Here is a useful guide from the Environment Agency which explains the more general obligations of riparian owners, for example with regard to pollution.

Islands

An island in the middle of a non-tidal river will belong equally to adjoining owners or in such proportion as the centre line of the stream bisects the island. An island entirely on one side of the river will belong to the near-side owner. An island in the sea or a tidal river will belong to the Crown.

Canals

If your land borders a canal, the canal and towpath are excluded from your ownership.

Lakes

The bed of a lake belongs to the owner of the surrounding land if the lake is entirely within the boundaries of a single ownership. If the lake is not within the boundaries of a single ownership, there is no presumption that explains who owns the lake bed.

Seashore and tidal rivers

The boundary of land which adjoins the sea lies at the top of the “foreshore”, which is the land between the high and low water mark of a mean average tide. The foreshore itself is owned by the Crown. The same applies to land bordering tidal rivers and inlets. For more about Crown ownership see the Crown Estate website.

Roads

The boundary of land abutting a highway extends to the middle of the highway, so this is similar to the presumption for rivers. However, the ownership of the road will be subject to whatever rights the highway authority has over it.

Railways

Railways were built on land acquired for that purpose, so the boundary of adjoining land is not the centre of the track but the bounding fence of the railway. The bounding fences are generally the responsibility of the railway company.

Hedges and ditches

When properties are separated by a hedge and an adjoining single ditch there is a presumption that the land owner on the hedge side owns both the hedge and the ditch. This follows a principle that an owner standing on his boundary looking inward towards his land dug his drainage ditch within his boundary and piled up the soil on his own side and then planted a hedge on the mound. This only applies to man-made ditches and does not apply if at the time the ditch was dug the land on either side was owned by the same person.

Fences

People often say that if the upright posts supporting the fence are on your side of the boundary then you own the fence. However, strictly speaking there is no presumption at law regarding ownership of a fence, although the position of the posts may be taken into account by a court in helping to determine the ownership of the fence.

Eaves and foundations

Plans attached to deeds usually show the boundaries at ground level only, but the eaves and foundations may in fact extend beyond the defined boundary line. If that is the case, the property includes these projections (but not the air space between them), unless there is evidence to the contrary.

Party Walls

Walls shared between two houses, such as in terraced or semi-detached housing, are usually party walls unless there is clear evidence that the wall is wholly to one side of the boundary line. I won’t go into the law concerning party walls here as that could take up several blogposts in itself.

Remember that all these presumptions can be rebutted – set aside – by evidence to the contrary or if the title deeds actually say something different.

If you intend carrying out any work to boundary features it is always a good idea to discuss them first with your neighbour and try to reach agreement. Boundary disputes are usually a nightmare for all concerned.

And finally...

Bricked-up Windows

Nothing to do with boundaries, but this week’s QI came up with a bit of myth-busting about bricked-up windows. The common assumption is that they were bricked-up to avoid or reduce window tax, which was charged between the 1690s and 1851. Sometimes that may be true, but more often they were just incorporated into the design of a building from the outset, to preserve the building’s symmetry. Minus 20 points if you got that one wrong!