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Jessica Piper-Thompson, Solicitor and Head of Property Litigation, Wessex Region discusses the latest case law arising from Rights of Way Disputes

The Background


Jessica Piper-Thompson
Jessica Piper-Thompson
Solicitor - Head of Property Litigation - South West

The case of Winterburn v Bennett [2016] EWCA Civ 482 raised an issue as to the steps which a landowner must take to prevent others using the land, without permission, from acquiring rights over the land.

The Winterburns own and run a fish and chip shop which is next to a privately owned car park.  They have run the chip shop since 1987.  Up until 2012, when they were prevented from doing so, suppliers would park on the car park for as long as it took to make their deliveries to the chip shop.  The car park was also used by the chip shop’s customers.

The car park, together with the club house on the far side of it, was owned by the Conservative Club Association until 2010 when it was purchased by the Bennetts.

The Association put signs in the window of the club house and on a wall fronting the car park, stating that the car park was private and was for the use of patrons of the club house only.  The sign on the wall was in place until the wall was demolished in 2007.  The steward of the Association had told the Winterburns, their suppliers and customers that they had no right to park on the car park; however neither the signs nor the steward’s assertions deterred them.

The Dispute

The Bennetts rented out the car park and club house in 2012.  Their tenant obstructed access to the car park from the road, which the Winterburns were not happy about.

The Winterburns claimed that they had acquired what is known as a ‘prescriptive right of way’ for the benefit of the chip shop, over part of the car park, by virtue of the fact that they had used it for 20 years or more, as of right (i.e. without force, secrecy or permission). 

The Winterburns’ did not have permission to use the car park and they had not done so secretly.  In this case, it was the element of ‘without force’ that was in issue.  The Winterburns would have to demonstrate that their use was not ‘under protest’.  Did the circumstances suggest that the owner of the car park objected, and continued to object, to the unlawful use by the Winterburns?  Was it necessary for the owner of the car park to take steps, through physical means or legal proceedings, to prevent the Winterburns from using the car park in the way they did? Or, were the signs, which stated that the car park was private property, enough to make the Winterburns’ use of it contentious?

The Decision

This may sound as though it should be fairly straight forward, but it was not.  The case was first heard by the First-tier Tribunal (Property Chamber), who held that the Winterburns had established their claim to parking rights, then that decision was overturned by the Upper Tribunal (Tax and Chancery Chamber), who’s decision was upheld by the Court of Appeal.

The Court of Appeal decided that signs displayed on land indicating that the land is for private use only are sufficient to prevent someone from claiming a prescriptive right over the land, even where the signs are completely ignored for the prescriptive period and no steps are taken by the landowners to enforce their rights.

The Court found that it was not necessary for the owners, having made their protest clear, to take further steps or to be put to the time, expense and trouble of legal proceedings.
Lord Justice David Richards acknowledged that “[t]here is a social cost to confrontation and, unless absolutely necessary, the law of property should not require confrontation in order for people to retain and defend what is theirs.  The erection and maintenance of an appropriate sign is a peaceful and inexpensive means of making clear that property is private and not to be used by others.”

Conclusion

If you own land or property that may be accessible to others and which others’ use of is difficult to control or police, it is worth giving careful consideration to putting up some well-placed, carefully worded signs in prominent positions to make it clear that your property is private and is not to be used by others.  Such a straightforward step might save you from inadvertently allowing others to acquire rights over your land, by virtue of long user (i.e. 20 years or more).
If you are concerned that others have been using your land or property unlawfully over a period of time, avoid the trap created by complacency and seek advice as to whether you can prevent them from acquiring prescriptive rights over the land.

We Can Help

At MW, our mission is "To make quality legal services accessible to everyone", including landowners who are in dispute with others over prescriptive rights to use parts of their property.

Our dedicated Property Litigation Team have the experience and knowledge to help you to resolve your issues in an efficient and timely manner.  If you have an rights of way issue you would like to discuss with our team call us today on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk

Ipad apartment search

Gary Leverett
Gary Leverett
Solicitor - Property Disputes

Airbnb, the darlings of the so-called Gig Economy, offer many homeowners a tempting opportunity to earn a little extra cash by making use of that spare room or even the use of your home as a short term holiday let.

However, many potential owners are putting themselves into a precarious legal trap following the recent case in the Upper Tribunal, and you may find yourself in breach of the terms of your lease.

Understand the Terms of Your Lease

It is common for many long residential leases to have clauses in the following or similar forms:

  1. “Not to assign, underlet or part with possession of part only of the demise premises.

  2. “Not to use the demise premises for any purpose whatsoever other than as a private residence / single private dwelling / other than a private dwelling in occupation by one family only.”

If you were just letting that spare room, you could be in breach of the first clause and if you were letting the entire property as a holiday let you could be in breach of the second clause.

If your lease contains a clause that you could only use the premises for the occupation of one family only, then this would also be a breach of the second clause. 

The Ruling

According to the recent case of Nemcova v Fairfield Rents Ltd [2016] UKUT303, the Upper Tribunal rejected Miss Nemcova’s submission that a short term let of a flat (through Airbnb) is still being let as a private residence. 

The Upper Tribunal held that in order for a property to be used as the occupier’s private residence, there must be a degree of permanence going beyond being there for a weekend or a few nights in the week. 

People who would be occupying the flat on a short term letting would not be occupying it as their home and therefore, Miss Nemcova was in breach of the terms of the lease because she was using the flat for a purpose other than used as a private residence.

The landlord in these cases can prohibit such lets by making an application to the county court or the First Tier Tribunal.  If such lets continue, you could, ultimately, in a very worse case scenario, have your flat forfeited by your landlord and thus losing a most valuable asset.  

Seek Professional Advice Before You Let

At MW, our expert property dispute solicitors can help you to examine and understand your lease.  We strongly advise that you seek the advice of one of our solicitors who will help you to  avoid the pitfalls of such lettings.  Make an appointment to check that your plans do not amount to a breach of the terms of your lease.  Timely advice at an early stage can avoid expensive litigation further down the line.

If you would like to talk to one of our Property Disputes Team, call us today on 020 3551 8500 or email us at enquiries@mwsolicitors.co.uk

Coroners Court

In a recent case, Justina Molloy, Partner in the Personal Injury Team, assisted by Simon Brown and Heather Petrie were instructed by the family of John Atkin.

John was employed as a driver technician, delivering equipment to the elderly, disabled and those who have undergone substantial medical operations to assist independent living. In February last year, John was delivering a stool to a lady who had recently had a leg amputated. John had been advised by his employers that the property would be unlocked and that he should enter and make himself known to the lady. John did as he was instructed however unfortunately there was a dog in the property which he and his employers were not aware of and he was bitten.

Following the bite, John returned to his work depot where he received first aid for a simple cut. He was asked whether he had an up to date tetanus vaccination which he confirmed he did. 

Sadly, on 27 February 2016, four days after being bitten, John was found unresponsive, having developed staphylococcal septicaemia, and died.

Had John been advised of the risk of septicaemia and the warning signs to watch out for, he may have sought further medical assistance. If he had received antibiotics, John may not have developed septicaemia and may still be alive today.

In February 2017, we represented John’s family at the inquest into his death, throughout which we were assisted by John Schmitt of 9 Gough Square who also acted on a pro bono basis. At the inquest it transpired that his employers had not undertaken a full risk assessment of the lady’s home, believing instead that an assessment of the property would have been carried out by the NHS or Social Services who had ordered the stool on the lady’s behalf. There was also criticism of John’s employer’s staff training and health and safety procedures.

The Verdict

The jury returned a unanimous verdict of accidental death and the Coroner indicated her intention for a Prevention of Future Death Report to be sent to John’s employers requiring them to make improvements to their systems to ensure that there are no similar deaths in the future.

This case highlights the dangers a bite can pose and the need to quickly seek medical advice for puncture wounds – in addition to the importance of having sufficient procedures in place to ensure all risks are identified in order to safeguard employees, such as identifying the presence of dogs, and other animals, at a premises.

Families Against Corporate Killers

The McMillan Williams Injury Team are strong supporters of the work of Families Against Corporate Killers (FACK) who campaign to stop workers and others being killed in preventable incidents.  FACK assist families of those killed as they go through the process of an inquest at the Coroner’s Court which is where MW comes in, acting for the families on a pro bono basis to provide them with legal representation at this difficult time.

We Can Help

At MW, our mission is "To make quality legal services accessible to everyone" including bereaved families who deserve to know the circumstances of their loved ones death.

If you would like to speak to a professional to discuss your case call us today on 0203 551 8500 or email us at enquiries@mwsolicitors.co.uk

Step Families Mirror Wills

The Pitfalls of Step Families Executing Mirror Wills

MW’s Wendy Rixon, Associate Chartered Legal Executive in our Estate and Trust Dispute Team, discusses the common issue of step-children left out of their step-parent’s Will. 

What is a Mirror Will


Wendy Rixon
Wendy Rixon
Associate – Estate & Trust Disputes Specialist

Mirror Wills are a common way for married couples to deal with their estates whereby each spouse leaves their estate to their spouse and then to their children.  This can work fine in a standard (nuclear) family situation; but things can go wrong, particularly in step-families.

Problems arise because Mirror Wills leave no obligation on the surviving spouse to leave their estate in any particular way.  Therefore even if the couple agree (or think they have agreed) between them on what should happen to their joint estate once they have died, unless their joint wishes have been properly put into force, anything can happen.  Most commonly, a step-parent has, for whatever reason, decided to change their Will after their spouse’s death effectively disinheriting their step children. 

I often get disappointed step children seeking advice who believe that because their parent and the step parent made Wills at the same time, in the same vein, that these are automatically mutual Wills.  This is more often than not, not the case.  However, if there is clear evidence that there was a binding agreement between the couple when they made their respective Wills the court can determine that the Wills were mutual Wills and therefore the terms are binding. 

Can I Challenge a Mirror Will?

So what can we do for you if you find yourself in a situation where your parent’s estate has passed to your step-parent and your step-parent changes their Will after your parent’s death with the effect that your family inheritance passes outside the family?

Firstly, it has to be remembered that in English law a testator can leave his estate to whomever he chooses to.  There is no obligation in this country to leave your estate to your children or any other dependent person.  Therefore, the courts are loathe to upset people’s testamentary wishes without good reason.  However, if your parent had always been very clear in his/her intentions that eventually his/her estate (or part thereof) would pass to you, it is understandable that there will be disappointment if the eventual position  is otherwise.  Therefore, we can look at the intention of your parent at the time the Will was made and see if there is any evidence that the Will was intended to be mutual or irrevocable. 

We can also consider whether you can challenge the validity of your step-parent’s Will.  For instance, he/she may have lost capacity following your parent’s death and may have not known or understood the implications of changing their Will or they may have been unduly influenced to make the Will the way they did by their own family or by a new partner or a carer.  You would, however, need to be a disappointed beneficiary and be able to show that you would have been a recipient under an earlier Will. 

We can also consider whether you would be eligible to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 as someone who was treated as a child of the deceased or had been financially dependant on the deceased. This was originally dependant on a marriage between the testator and the natural parent but the Inheritance and Trustees’ Powers Act 2014 widened the scope in this category, negating the need for the dependency to be part of a marriage for deaths after 1 October 2014.  

We can help

At McMillan Williams, Our Mission is “to make quality legal services accessible to everyone” including those who find themselves disinherited from a step-parent’s estate.

Our specialist Estate and Trust Dispute Team are here to offer a helping hand and to guide you through the process of making a claim as quickly and painlessly as possible.  If you would like to take advantage of our FREE CASE REVIEW, call us today on 020 3551 8550 or email us at enquiries@mwsolicitors.co.uk.

MW Solicitors Head of Personal Injury Helen Clifford and Personal Injury Executive Timothy Pyant were featured on BBC London News last night (Monday 20th February).

They spoke about their efforts to support those affected by the Croydon Tram Crash which occurred on the morning of Wednesday 9th November 2016 at Sandilands Junction.

The process of getting full compensation for accidental injuries can take years to resolve.  Our solicitors are expert in helping victims of accidents get interim payments so that they can get the help they need to begin rebuilding their lives.

Timothy Pyant said:

"It's going to be stressfull if you're not able to pay your bills on time or you're not able to pay your rent on time.  There are people that are being threatened with eviction because they are not able to work and what we are trying to do is to facilitate interim payments for those people."

Helen Clifford said:

"People need to be able to pay their bills we don't want people to be ending up homeless as a result of this accident.  It's simply not their fault, they are innocent victims here and they need to be supported."

Tram Crash Support Network Event

Our firm has been established in the Croydon area for 34 years and we are committed to supporting our local community.  To further support our clients and others affected by the tragic events of 9th Nov We are holding a Support Network Event on Tuesday 28th February 2017 at our New Addington Office.

56-58 Central Parade
New Addington
Surrey
CR0 0JD

We Can Help

If you would like to attend the event and talk to one of our team and to meet other survivors and victims families please contact Timothy Pyant on 07464 541 709 or email Timothy.Pyant@mwsolicitors.co.uk.

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