16/01/2012
Property owner responsibilities and ownership of sewers and drains
From the 1 October 2011 the majority of private sewer and lateral drain ownership was transferred to water and sewage companies. This change will benefit most home owners as the responsibility for looking after drains is now much clearer and the transfer should reduce high maintenance and repair costs which were previously thought to be unfair. Private sewers are pipes which carry waste from more than one property. Lateral drains are pipes which carry waste from a single property and extend beyond the boundaries of that property.
Not all private sewers will be transferred. The link below to South West Water’s website provides access to 3 short video clips which outline how the changes will affect the responsibility and ownership of sewers and lateral drains of detached, semi detached and terraced properties, as well as flats.
http://www.southwestwater.co.uk/index.cfm?articleid=8372
Transfers will occur in many other circumstances concerning commercial property, pumping stations, sewers which cross a railway or are owned by a railway and drainage which is via a highway drain. In these and other circumstances advice should be obtained. Septic tanks and private sewers which discharge to watercourses are unaffected.
These transfers also impact upon a property owner’s plans to build near or over a sewer which is going to be or has been transferred. Approval of plans for a building near or over a sewer which is to be transferred is now required (since 1 October 2011). Likewise approval of plans for a building near or over a sewer which has been transferred needs to be obtained if Building Regulations approval was granted after 1 October 2011.
For further advice relating to any of the issues raised by this article please contact SWLaw’s Property Department. Other useful information can be found on the Environment Agency and South West Water websites.
20/12/2011
It doesn’t matter said Lord Phillips giving his judgment in R v Gnango In a tragic incident a care worker was killed in the cross fire between two gunmen ‘B’ and Mr Gnango. The bullet actually came from B’s gun but B was never caught. Mr Gnango was charged with murder and convicted. The conviction was overturned by the Court of Appeal which held that there was no ‘joint enterprise’ to support a conviction. The Crown asked the Supreme Court to address this question :
“If D1 and D2 voluntarily engage in fighting each other, each intending to kill or cause grievous bodily harm to the other and each foreseeing that the other has the reciprocal intention, and
if D1 mistakenly kills V in the course of the fight, in what circumstances, if any, is D2 guilty of the offence of murdering V?”
The conviction was restored by a 6 – 1 majority (Lord Kerr dissenting). The leading judgment was given by Lord Phillips and Lord Judge who did not find it necessary to determine whether Gnango was a principal or secondary offender : the jury had found that both men had agreed to the joint enterprise of having a shoot-out. Lord Wilson agreed.
The full judgment is here R v Gnango [2011] UKSC 59. The Supreme Court also issued a press summary.
14/12/2011
SWLaw is accredited to the Lexcel practice management standard. The standard promotes excellence in client care and case management as well as effective risk management. Accreditation follows an independent assessment and is awarded to practices meeting “the highest management and customer care standards”.
This follows the achievement of the Conveyancing Quality Scheme accreditation earlier in the year.
12/12/2011
SWLaw Solicitors Ltd is currently looking to recruit an Accounts Manager. Please see the details here.
We are also always on the lookout for people who share the firm’s ethos and who have the determination to work and grow with us. Opportunities exist for solicitors or legal executives able to contribute to the development of specialisations within the practice.
There is also an opening for an experienced Independent Financial advisor and/or paraplanner to work in SWLaw Investment & Financial Planning Ltd – our FSA regulated business.
If you think this could be for you, please contact our practice manager !
30/11/2011
Boundaries are not always set out with great precision in plans. Sometimes boundaries change. Consequently, the physical boundary may or may not represent the legal boundary. Arguing over them is costly especially if the fight goes to the courts. Such a case came before the Court of Appeal in Zarb v Parry.
In this case a strip of land had been occupied by the Parrys and their predecessors in title over a number of years. The Zarbs sought to recover the land and to restore the boundary to the position shown on the legal title. They tried to do so by force in a rather ugly incident in July 2007 which is described in the judgment. They later took proceedings for the recovery of the land.
This was a case falling to be decided under the Land Registration Act 2002. The Parrys’ had a defence if they could show that they had been in adverse possession of the land for at least 10 years. The Court of Appeal had to consider the questions of (1) whether the occupation had been with the consent of Mr Little (the predecessor the Zarbs) and therefore not ‘adverse’; (2) whether the attempt to repossess the land in July 2007 interrupted the Parrys’ possession; and (3) whether the Parrys met the condition under paragraph 5(4) of Schedule 6 to the Act that -
“(a) the land to which the application relates is adjacent to land belonging to the applicant,
(b) the exact line of the boundary between the two has not been determined under rules under section 60,
(c) for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) reasonably believed that the land to which the application relates belonged to him, and
(d) the estate to which the application relates was registered more than one year prior to the date of the application.”
The Court of Appeal found in favour of the Parrys. It is a pity that such expense was incurred in litigation. There had been an attempt to resolve the dispute by jointly instructing an expert under the RICS Dispute Resolution Service. The expert in this case was David Powell a specialist in such disputes with many years experience. His report established that the boundary was as contended for by the Parrys but was not accepted by the Zarbs and their advisers and so resorted to litigation.
Lady Justice Arden, who gave the leading judgment in the Court of Appeal, added a postscript including a cautionary note for purchasers of land and their advisers. “These proceedings have been costly and there is a cautionary story here for purchasers of land. No doubt those advising on transfers of land will consider what they need to do in future to protect their clients from costly disputes such as this one. Purchasers are not necessarily protected merely because the seller gives an assurance that the dispute with a neighbour has seemingly “gone away”. Boundary disputes have a habit of reappearing until finally resolved. The neighbour or the neighbour’s successor in title may, for whatever reason, resuscitate the dispute, unless something is done to prevent them from doing so. It may be that the purchaser will have to consider whether to ask the neighbour to confirm the boundaries and have the necessary deed of confirmation registered at the Land Registry in a manner capable of binding successors in title. That will involve extra costs and delay but the costs may be less than the undoubted cost of litigation of this kind. If the neighbour refuses to be bound by an agreement as to the boundary the purchaser will then know the risks that he is running by completing the purchase. Moreover, the purchaser on acquiring possession might himself be advised to bring matters to a head by himself applying for registration as owner of the land in question.
“If a dispute emerges, every effort should be made to resolve it without litigation…”
28/11/2011
Today sees the preview of ‘The 4 Seasons’. Come along to the offices of SWLaw from 6 – 8pm and support a talented group of South Hams artists in their Winter Exhibition featuring landscapes, figurative and abstract paintings using a variety of media.
The contributing artists are: Rosemary Bonney, Diana Booth, Rosemary Ensor, Jenny Kay, Ann Chester King, Christine McGuire, Denise Orchard, Pam Parrotte, Sarah Post, Penny Sheridan and Janet Taylor.
The exhibition will run until 2nd March 2012. As well as giving support to local artists it is a chance to support an important local charity. The Plymouth Highbury Trust will benefit from a share in the proceeds of all sales.
See also our the Exhibitions section on our website and our earlier news item.
Follow our SWLaw news pages and follow us on Twitter @SWLAWCOUK.
25/11/2011
The Court of Appeal gave judgment yesterday in a case in which it had to consider the effect of a breach of a condition in a contract for the sale of land. The seller of a warehouse and outbuildings at a farm had contracted to provide, within six months after completion, a new directly metered electricity supply and a separately metered mains water supply. The seller failed to comply with the condition of the contract and the buyer purported to rescind the contract and claim back the purchase price.
The leading judgment of the Court of Appeal in Howard-Jones v Tate was given by Lord Justice Kitchin. The admitted breach of contract did not entitle the buyer to rescind or to treat the contract as void ab initio. Instead, the breach entitled the innocent party to elect to treat the contract as discharged and claim damages for the breach. Allowing the Defendant’s appeal, the Court of Appeal remitted the case to the County Court for damages to be assessed. The proper basis of that assessment was not to put the Claimant buyer in the position he would have been in had the contract not been entered into but rather to identify the damage suffered as a result of the breach of contract.
25/11/2011
It is generally known that an easement, such as a right of way, can be acquired simply by exercising the right, unchallenged and uninterrupted, over a long period. For the claim to the right to be successful it must have been exercised without force, without stealth and without permission – nec vi, nec clam, nec precario. The Court of Appeal handed down judgment this week in the case of London Tara Hotel v Kensington Close Hotel. The Tara was built in the early 1970s and, by an agreement in 1973, the owner of the Tara gave the owner of the adjacent Kensington Close permission to use a roadway on its land from year to year for a nominal licence fee of £1 (if demanded). The Kensington Close hotel changed ownership several times from 1980 onwards. No subsequent licence was granted. The Court of Appeal upheld the finding of the trial judge that the exercise of the right from that time onwards was no longer by permission. The Court of Appeal rejected arguments that the right was exercised : (1) by permission -because the Tara wrongly assumed the licence still to be in effect; or (2) secretly – because the Tara had not been told of the change of ownership. The right had been exercised openly and without permission for a period of at least 20 years and a prescriptive right had been acquired.
23/11/2011
Vince Cable, Secretary of State, in a speech to the Engineering Employers’ Federation, has set out plans “to radically reform (sic!) employment relations” safeguarding workers’ rights while deregulating to reduce the onerous and unnecessary demands on business. An interesting and challenging balancing exercise!
Announcements include :
• Tribunals: all claimants will be obliged to submit claims to ACAS to give parties opportunity to resolve their dispute through conciliation before it can be taken to Tribunal
• ‘Protected conversations’: to allow open discussion on such matters as performance issues free from the concern that it may be used as evidence in a later Tribunal cliam
• Compromise Agreements: consultation on simplifying arrangements
• ‘Rapid resolution’ scheme: for more straightforward matters
• Review of Employment Tribunal rules: to be undertaken by Mr Justice Underhill with the intention of modernisation.
• Introducing fees to start a Tribunal case : consultation to be published by Ministry of Justice.
• Qualifying period for unfair dismissal : to be increased from one year to two years
• Compensated no-fault dismissal for firms with 10 or fewer employees: views to be sought from both sides
• Slimmed down dismissal process: views to be sought on a move to a simpler, quicker and clearer dismissal process
• CRB checks : results to be accessible online from 2013 to avoid duplication and delays
The full speech is here.
22/11/2011
The Office of Fair Trading has today approved the Motor Industry Service and Repair Code.
Key features and benefits of the Motor Industry Service and Repair Code are:
• comprehensive monitoring of member garages, including inspection visits by independent RAC engineers
• quotes or estimates for work include a written breakdown of costs, detailing the charges for labour and parts
• where further work is required, the member garage must get customer permission before proceeding with this
• member garages do not take upfront deposits
• independent disciplinary procedures are in place, with a range of sanctions including warnings and termination of membership, to deal with garages that breach the Code
• a low-cost independent redress scheme is available to customers
• all customers can give online feedback about the garage on the Motor Codes website.
