APC Access Flashcards
What are the access rights afforded under the New Code?
Immediate access in an emergency
access on reasonable notice all other times (48 hours suggested by OFCOM)
statutory right to access land/buildings for survey
CTIL v the University of London (2020) - Interim rights can be sought for access to MSV.
What is the difference between a wayleave and an easement?
A wayleave is granted to the person who owns the land and is terminable.
An easement relates to the land itself and is permanent.
What is a restrictive covenant?
A binding condition written into property deeds or contract to determine use of a property. Common examples:
- prevention of alterations
- prevention of new structures being erected
- preventing business from operating on the land
How would you release a restrictive covenant?
If all parties benefitting from the covenant agree, a Deed of Release can be completed.
Some RCs can be removed by an application to the Upper Tribunal.
What is a Charge (on LR)?
Details of a burden on a property,
e.g. restrictive covenants, positive covenants, easements, mortgages.
What is a positive covenant?
A binding condition that obliges the undertaking of positive action in relation to property, usually requiring expenditure. Common examples:
- building / maintenance of a boundary fence
- responsibility for maintenance of parking area or access route.
How does a positive covenant mechanism differ from a restrictive covenant?
PCs don’t usually ‘run’ with the land and so can’t be enforced by successors in title, unless via an established conveyancing device or explicit inclusion in a contract.
What is the purpose of tools like MAGIC?
Mapping software tools can be used to undertake thorough desktop analysis of areas.
MAGIC is run by DEFRA and can be used to identify land designations which could impact development (SSSI, AONB, NSA, protected habitat etc.).
Other mapping tools - Promap, NGRFinder, Google Earth
What rights could be granted in an Agreement in relation to wayleave requests?
Requirement to assist the Tenant in entering into any necessary wayleaves to support the running of the Equipment.
Route to be agreed with Landlord (CNTBUWOD or absolute)
Limited of number of wayleave requests to be progressed in a given period
Common routes of legal recourse in relation to wayleave acquirement?
ADR mechanism e.g. arbitration or mediation
Legal enforcement of rights
Damages claim due to lack of connectivity
Under duress / WP / goodwill payments to facilitate approval process
How does an asset transfer work?
Legally transfers ownership of a property from seller to purchaser.
Usually SAS, no recourse if asset is not as valuable as believed.
Documented via an Asset Transfer Agreement signed by both parties.
As part of an ATA, if relevant the landlord can request an AGA from the seller to support the suitability of the new tenant (purchaser).
Why would an unsuitable vehicular route have been historically agreed?
Lack of foresight, quick completion deadline.
If a sharing agreement as in this case, use of historic access right with no option for improvement.
Explain the differences between access rights in older forms of agreement, and those provided for under the new Code.
Access protocols and restrictions much more common in older forms of agreement - standard access fees, requirement for accompaniment, long access request approval process.
Now only restricted where there is a verifiable need for the Landlord to do so - occupational safety, commercial impact etc.
Why would the access and land rights under a lease be different to those under a licence?
A lease provides exclusive possession of the legally agreed demise, whereas a licence allows for the placement of equipment only with no legal relationship created. Therefore licence access can be much more restricted than lease access.
How are easements created?
Granted / Express
or
Implied, via:
* Necessity
* Intention
* Prescription
