The Practical Lawyer


SDLT – goodwill

To what extent should you apportion part of the purchase price of a business to goodwill? This is particularly important in the sale of businesses run from trade premises (eg pubs, hotels, petrol stations, cinemas, restaurants and care homes).

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Right of light – agreement?

Under the Prescription Act 1832 a right of light arises after a ‘period of 20 years without interruption... unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing’.

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Highway – non-dedication

The traditional way for a landowner to stop a public highway being created across land is to close off access for one day every year, so as to make it clear that use by the public for the remainder of the year is permissive. Alternatively, many landowners erect signs under the Highways Act 1980. The point, of course, is that landowners are concerned about the creation of new public highways through long-use (ie public use, without permission, for a period of 20 years or more).

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Listed buildings – reminder

It is worth noting that the government has issued new guidance to LAs aimed at more enforcement of the listed buildings regime. Bear in mind that:

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Restrictive covenant – who benefits?

The owner of a bungalow wanted to replace the flat roof with a pitched roof. But, the bungalow was subject to a covenant not to make any alterations without the plans having first been approved by ‘the seller’ (such approval not unreasonably withheld). However, the seller had died and the question then arose as to whether his successors in title had the benefit of the covenant and so were able to enforce it.

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Restrictive covenant – modified

Who can enforce a restrictive covenant that has previously been modified by the Lands Tribunal? The answer will depend on the wording of the order made by the LT, but the key point to note is that it can never be a wider group of people than were originally able to enforce the covenant.

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Insurance – material change

Since an insurance contract is a contract ‘of the utmost good faith’ it follows that the insured must disclose all material facts (and not misrepresent material facts). In deciding what is ‘material’, the statute says:

‘Every circumstance is material which would influence the judgment of a prudent insurer in fixing the premium or determining whether he will take the risk’ (Marine Insurance Act 1906).
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Adverse possession – highway?

Is it possible for a squatter to obtain adverse possession of land dedicated as a public highway?

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Right of way – interference

To what extent can someone who has granted a right of way ‘interfere’ with the exercise of that right of way?

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Right of way – right to park?

The general rule is that no right to park will be implied into a right of way. There is, however, a Scottish case which is often referred to as an authority for an implied right to park.

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