Example 2: Easement

Here was a property issue that many find convoluted and thus difficult to resolve, however I was able to not only advise the client of their options, but also help to explain the limitations of his legal rights against the superiority of statute, both of which removed any potential doubts and fears around how best to enforce private property rights within a multi-party dispute, and giving the client a clear and navigable path should relations have later run aground.

Dear Mr xxxxx

Please find first, the necessary background to your current legal concern as below:

Background

A grant of easement has been issued to ____ (a corporate subsidiary) whom we shall name N in the year ____ with specific restrictions in place as below:

(1) Erection and reasonable maintenance of a lockable gate as per s. _

(2) Reasonable upkeep of the easement including keeping it clear at all times as per s._

(3) Prevention of any general public use of the easement unless permitted by ____ whom we shall name D as per s._

On this occasion, the grantee N ignored restriction 1 before undergoing dissolution, at which point the land was acquired by H (who already owned N) and who then let the land to ____ whom we shall name T, who then allowed use of the easement by a third party ____ whom we shall name F as part of an earlier road development scheme, despite restriction (3) remaining in effect.

It is presently unclear if the easement terms were included within the tenancy agreement, hence T allowing F to use the easement and the land for soil storage.

D has since offered to erect a lockable gate and send an invoice to N, unless N complies with the terms of the easement.  

In ____ a Compulsory Acquisition Order was granted with effect as of ____ in relation to a redevelopment of the road mentioned above.

This order suspends and extinguishes all existing rights over the land until completion of the road redevelopment.

From the drawings provided it would appear that the Acquisition Order directly affects D’s ability to enforce the easement until completion of the redevelopment, which is scheduled to end sometime in the next 3-4 years.

Additional comments

D has expressed that despite the temporary suspension of land ownership rights he would like a gate erected now, therefore under these circumstances I would advise that:

(A) D erects and pays for the gate and retains the invoice until completion of the road redevelopment, after which D could contact N with a view to requesting full payment under the terms of the easement (however I am unsure as to whether the easement is enforceable by a court and so would suggest that further investigation is needed in this area).

Or:

(B) D contacts N to request a lockable gate be erected on or around the completion date of the road redevelopment, or should N refuse to comply, the matter would need to be escalated in accordance with D’s grantor rights.  

In this instance, the matter was researched and resolved within around three hours of my receipt, which is far quicker than that one might anticipate from an experienced property lawyer who would no doubt have already been swamped with numerous pending caseloads prior to the initial enquiry.

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