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Restrictive covenant – reminders

A reminder of some of the basic points about restrictive covenants:

Does the covenant ‘touch and concern’ (ie benefit) the land? And does it ‘burden’ other land? Unless it touches and concerns land it will probably be a mere personal benefit, and thus merely a contractual arrangement (rather than a restrictive covenant).

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Restrictive covenant – illustration

A recent Upper Tribunal case provides a neat illustration of the way the Tribunal can approach compensation, conduct, consent, and costs.

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Adverse possession – registered land

A reminder that there are two different regimes for establishing adverse possession in respect of registered land.

Old law: if a trespasser can show that they had been in adverse possession for 12 years prior to 13 October 2003 then there will be an entitlement to be registered as proprietor.

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Squatters – Christmas

Anecdotally, there is an increase in the number of squatting cases over Christmas (whether they be illegal ravers, protesters, or trespassers who want to strip the premises and dump contaminated waste and rubbish in the premises). Needless to say, many commercial premises, such as offices, are particularly vulnerable during the long Christmas break.

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Right to light – release by T?

To what extent can a long-lessee release the right to light over the tenanted property (without L’s consent)? After all, if there is 20 years or more left on the lease then, in theory, that would allow a neighbour to acquire a right to light (without L’s consent).

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Restrictive covenant – pub

The ongoing closure of pubs is seen as a social ill. Typically, the pub owner will face two challenges. Firstly, an application for planning permission will now probably be necessary. Secondly, local residents may be able to protest (and delay) by having the pub registered as an ACV (asset of community value).

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Pool Re – terrorist ‘organisation’

Many businesses purchase additional terrorism cover. That terrorism cover is provided by insurers through the Pool Re scheme (the logic being that insurers pay a premium which is then charged to the customer, but the insurance industry in general benefits from group coverage of the risks of terrorism damage through Pool Re).

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Prescription – evidential burden

For a prescription, it is necessary to show (i) that the right has been exercised for 20 years or more, and (ii) that the use was without force, secrecy or permission.

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Highway – what is a ‘spit’?

If legislation vests a highway in a highway authority, then the authority does not become the freehold owner of that land. Its ownership is limited (both in height and depth).

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IHT – Business Property Relief

Business property relief (BPR) gives a wide exemption to inheritance tax. Needless to say, there are various conditions that apply. In particular, BPR will not be available if the business ‘consists wholly or mainly’ of ‘dealing in securities, stocks or shares, land or building or making or holding investments’. From a practical point of view this is likely to exclude most businesses that involve the letting of property. In general, tribunals have held that letting property is a business that consists wholly or mainly in the making or holding of investments, no matter how extensive the services provided.

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