Head 18: 11 Flashcards
(21 cards)
1) Extinction of real burdens by the Land Tribunal is provided for where?
Part 9 TCA 2003.
1) s 90(1)(a)
The tribunal may vary or discharge any ‘title condition’, including a real burden and servitude, on application by the owner of the burdened property or any other person against whom the condition is enforceable
1) What happens when the Land Tribunal receives an application to extinguishes a real burden?
On receiving an application, the Tribunal notifies the owner of the benefited property or, in the case of a personal real burden, the holder of the burden (s 93).
1) Following notification of an application to extinguish a real burden…
Representations may be made to the Tribunal by anyone with title to enforce the condition within a stipulated period, being not less than 21 days (ss 95 and 96).
1) If no representation is made by an owner of a benefited property (or holder of a personal real burden)…
The application is granted as of right and without further inquiry (s 97).
But this rule applies only to real burdens (other than facility and service burdens), and not eg to servitudes.
In all other cases (ie opposed cases) the Tribunal must consider the application on its merits having regard to the factors set out in s 100 (s 98).
1) What are the main factors that the court must consider in s 100 of the Act?
(a) concerns whether there has been a change in circumstances since the burden was first in place (e.g. a burden that was reasonable in 1820 may not still be reasonable today).
(b) : to what extent does the burden confer benefit on the benefited property
(c) : how much of a nuisance is the burden to the owner of the burdened property
There will often be a balancing act between B and C
1) s 90(6)-(11)
Even if persuaded on the merits, the Tribunal has power to order compensation or the imposition of a replacement burden
1) s 104(2)
The Tribunal discharge takes effect on registration of the Tribunal’s order.
2) How are real burdens extinguished by agreement (standard case)?
One obvious way of getting rid of a real burden is by approaching those who have enforcement rights and to ask them to release you from a burden. This is provided for in s 15 TCA 2003: it must be done by a unilateral deed (granted by the owner of the benefited property(s) and must be dual-registered.) In practice these deeds are known as minutes of waiver.
3) How are real burdens extinguished by agreement (community burdens)?
It would often be impractical to obtain the agreement, and signatures, of everyone in a community. So the TCA 2003 allows a deed signed only by:
⁃ 1) a majority of owners (or different percentage specified in constitutive deed) (s 33) or
⁃ 2) by the owners of the affected property and of all other properties in the community within 4 metres (discounting roads less than 20 metres wide) (s 35).
3) If you try to extinguish a community burden then you must…
Notify all the other owners in the community must and allowed 8 weeks to apply to the Lands Tribunal for preservation of the burden. [If such an objection is lodged then the Lands Tribunal must decide on the reasonableness under s 100 using the 10 factors set out in the section on the lands tribunal above.]
For a s 33 discharge individual notification is needed.
For a s 35 discharge it is sufficient to attach a notice to the property and a lamp post or two.
3) Under s 33, as an alternative to majority…
s 33 also allows signature by a manager duly authorised for that purpose
3) Assuming no lands tribunal application…
A certificate to that effect is endorsed by the Tribunal on the discharge. Registration then extinguishes the burden.
3) The effect of s 33 can be to…
For a variation of the conditions as they affect EVERYBODY rather than just one person. So the entire community burden can be altered for everybody.
4) How are real burdens extinguished by unilateral discharge (sunset rule)
Real burdens (but not servitudes etc) which are more than 100 years old may, in principle, be discharged by the owner of the burdened property or any other person against whom the burden is enforceable (s 20).
But excluded are conservation burdens, maritime burdens, facility burdens, and service burdens (s 20(3)).
4) Procedure for unilateral discharge?
The procedure is for the owner etc to draw up a notice of termination in the form set out in sch 2 (he is known as the terminator). The notice is sent to the owners of all benefited properties within 4 metres (discounting roads less than 20 metres wide). In respect of other benefited properties it is sufficient to fix a notice on the burdened property and on an appropriate lamp post or posts (s 21). Benefited owners then have a minimum period of 8 weeks to object by applying to the Lands Tribunal (s 90(1)(b)(i)). If no application is made (of if it does not extend to all the burdens, or all the benefited properties), the notice is endorsed with a certificate by the Tribunal and may then be registered (s 23). On registration the burden is extinguished (subject to the outcome of any Tribunal application) (s 24).
5) How are real burdens extinguished by breach and negative prescription?
All the above have been deliberate attempts to extinguish real burdens. There is another approach - simply to ignore/breach the real burden.
In the event of breach, the right of an owner of the benefited property to enforce the burden against you prescribes after 5 years (TCA 2003 s 18). The extinction by prescription is only an extinction to the extent of the breach.
[⁃ So if there is a real burden which states “no building” and the burdened property owner builds an extension in breach of this. After 5 years the burden is varied to the extent of allowing the extension that has been built but otherwise it remains in place - the owner of the burdened property is still not allowed to build any more.]
6) How are real burdens extinguished by acquiescence?
Even if less than 5 years has passed, a burden may be extinguished, to the extent of the breach, by acquiescence. This was a common law rule but it has now been codified into TCA 2003 s 16
6) What are the requirements for breach by acquiescence?
s 16
This requires breach involving expenditure + potential loss of the expenditure if burden were now to be enforced + either actual (if informal) consent or non-objection for a period not exceeding 12 weeks from substantial completion of the work. After the 12-week period has passed, the fact of non-objection is presumed (although the presumption can be overcome).
⁃ [So in other words, if you neighbour is breaching a real burden and you are aware of this, then you must object at the time - you can’t wait until it is finished for years and then object.]
7) How are real burdens extinguished by breach where there is no interest to enforce?
A burden breached at a time when there is no one with an interest to enforce is extinguished to the extent of the breach. TCA 2003 s 17.
8) How are burdens extinguished by compulsory purchase?
Not sure?
