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ARTICLES

Boundary Disputes - Hints & Tips

Boundary disputes most commonly occur between owners of adjoining residential properties. This is because homeowners commonly tackle issues affecting their homes emotionally rather than pragmatically; they view the issue as a personal attack rather that standing back and evaluating what is really the problem.

Historically, the drafting of Conveyances and Deeds of Easements hasn't assisted us in determining boundaries or boundary agreements. In the 1800's, solicitors would be paid per word when drafting legal documents. As such they would pad out conveyances in order to increase their income. In turn, this meant that the true meaning or intention of the document would get lost in lengthy and unnecessary text. Historical Conveyances and Deeds are therefore often unhelpful when trying to see what was originally agreed between land owners. However, solicitors nowadays should not be put off considering them when they are trying to determine the boundary history, and should certainly not ignore them as we have often been pleasantly surprised to find key clues as to the true meaning and intention of that document hidden within the text.

Another issue is a lack of knowledge and understanding about boundaries. Most people assume that the Land Registry red edging on Title plans signifies the line that precisely defines their boundary. However, Lawyers, Chartered Surveyors and other boundary experts are aware that this is a misjudgement and that the red edging should only be treated as a guide. Therefore, measurements scaled from this plan may not match measurements between the same points on the ground; the Land Registry itself advises that boundaries shown on its plans are 'general boundaries'.

The Land Registry and Ordnance Survey issued a joint statement, which can be found at http://www1.landregistry.gov.uk/about_us/ordsurvey/, which defines general boundaries as follows:

"General Boundaries
England and Wales operates a 'general boundaries' system of land registration. A title plan with 'general boundaries' shows the boundary of a property in relation to a given physical feature on the ground such as a wall or hedge as identified on the Ordnance Survey map.
The red edging on a Land Registry title plan is therefore not definitive as to the precise position of the boundaries. For this reason official copies of title plans carry the following:-
This title plan shows the general positions of the boundaries: it does not show the exact line of the boundaries. Measurements scaled from this plan may not match measurements between the same points on the ground."

As such, if the location of fences, walls and other boundary features change, and the Land Registry is not specifically notified, or has not carried out an up to date survey of the area and re-drafted its plans, the plans will not show any changes.

In Alan Wibberley Building Limited v Insley [1998] 1 WLR 893, Lord Hoffman referred to Land Registry maps based on the Ordnance Survey and added that "the precise boundary must, if the question arises, be established by topographical and other evidence".

A further factor is the lack of any English Law against theft of someone else's land. Plants, paving stones, dustbins and even gnomes may be regarded as having been stolen from your land, but the land itself cannot be stolen. Someone can seek to possess your land, or even trespass upon it, but they'll never be regarded as having stolen it. The lack of sanction means there is no deterrent.

Options
What should you do if you think your neighbour has stolen your land or you simply are unsure of the boundary position?

The answer depends on your personal circumstances and will often rest upon your relationship with your neighbours and how open minded and pragmatic you are both willing to be.

  1. You can consider the Title Plan to you property and check whether there are any obvious discrepancies with what is on the ground against what is registered. If you have a straight line boundary fence on the ground but the plan shows a clear kink, you know there is a discrepancy. NB// Don't forget the Land Registry's general boundaries rule.
    We can help you to consider the Title Deeds to your property (unregistered land) or the Land Registry title documents (registered land). If these documents do not prove helpful, we will be able to obtain and consider the Land Registry title documents registered against neighbouring properties, as these may have fixed or determined boundaries. We will then advise you of our findings.
    It is also very useful to obtain a historical perspective and build up the picture over time. We can help you to obtain this not just through plans, but also through maps, photographs, aerial photographs and where necessary, by contacting former owners and occupants of the disputed land.
     
  2. We will always recommend that you try to speak with your neighbour honestly and openly about the issue. If you have some idea of where the boundary may be, you should explain those thoughts with your neighbour and show them how you have come to that conclusion. How that conversation goes will then determine what steps you should take next. We would also recommend that you follow up any such conversation with a written letter so that you have some form of evidence of what was discussed.
     
  3. Agree with your neighbour the exact line of the boundary. You can then jointly appoint us to submit a Determined Boundary Application at the Land Registry for you. We would instruct an architect / boundary surveyor to prepare a Land Registry compliant plan, which accurately shows the precise line of the agreed boundary. We would then seek to file the plan at the Land Registry together with the application.
    A Determined Boundary Application would result in both properties boundaries being specifically set out in registration documents. If the application shows a clear difference in what is on the title plan then the Land Registry may well decide to carry out a survey of the properties and prepare an up to date title plan. If the changes don't significantly (what is significant will be decided by Land Registry) affect the plan then the existing plan will remain, but an additional note will be included in the register referring to the Agreement and any plan appended to it.
    Few Licensed conveyancers and architects, and not all solicitors will be aware of the Determined Boundary procedure and the Land Registry's strict requirements when submitting these. We can therefore advise the architect of the Land Registry's exact requirements of what should/should not be included on the plan. For example, the Land Registry will refuse an application where the plan is filed at the wrong scale, with too much annotation or with a disclaimer.
    Sometimes, it is also helpful for the application to be supported by a Deed of Agreement, signed by both parties setting out precisely what has been agreed. We will recommend that a Deed is entered into where specific measurements, maintenance details, restrictions on use etc. are agreed. We can draft the Deed of Agreement for you and ensure that it sufficiently and accurately covers both parties' intentions.
     
  4. If neither party has any idea where the boundary should be and would prefer a professional opinion, we can instruct a boundary surveyor to 'determine' the boundary in his/her professional opinion. You can choose to wait and see what their findings are and then decide between you what steps to take. Alternatively, we can draft an agreement entered by both parties stating that you will be bound by the surveyor's findings and that a Determined Boundary application accompanied by a Deed of Agreement in accordance with the surveyors findings will be filed at Land Registry (again we can prepare the Agreement and file the application on your behalf).
     
  5. If you believe you know where the boundary is but are not able to contact your neighbour or do not know who they are, we can nonetheless still file an application at Land Registry for a Determined Boundary. The Land Registry will forward a copy of your application to the neighbouring property, giving the owner an opportunity to respond with their comments. If no response is received, the application will be accepted. If the owner of that property responds but disputes some or all of the application, then an opportunity to agree matters will be provided. Otherwise the matter will be referred to the Land Registry Adjudicator for them to deal. We can then assist you to liaise with your neighbour and hopefully remedy the disputed issues or advise you in dealing with and responding to the Adjudicator.
     
  6. Where the situation proves contentious (the possibility of a legal dispute) we will advise you of all the pros and cons of litigation including carefully explaining to you the steps to be taken and the costs involved.
    Whether it is in person, in writing between solicitors, or with the assistance of an experienced Mediator, we will always suggest seeking to negotiate with a neighbour one last time before Issuing proceedings.
    Once proceedings are issued, and following the initial stages of the claim, the court will also recommend staying proceedings (putting them on hold) for a period of one month, whilst the parties seek to find an agreeable solution. If during the one month stay, you are able to settle the issues, the court can make an order in the terms agreed. If you are not able to settle your issues, proceedings will recommence. It is worth noting that judges will frown upon a party that refuses to accept a one month stay and show a real attempt at settling outside of court. The judge will warn both parties of the financial and personal risks of pursuing the claim in court any further.
    Recent Court of Appeal decisions have highlighted the sometimes desperate nature of parties in the pursuit of boundary disputes, which leaves them in jeopardy of having to pay tens of thousands of pounds (sometimes hundreds) in legal and professional costs. A number of cases over the past few years highlight the inconsistent approach to boundary disputes adopted by trial judges and the higher courts.
    In both Ali v Lane [2006] EWCA Civ 1532 and Haycocks v Neville [2007] EWCA Civ 78 the Court of Appeal held that it was ok to consider extrinsic evidence and subsequent conduct of parties when determining the position of the boundary.
    The case of Charalambous v Welding [2009] EWCA Civ 1578 had almost identical facts to Haycocks but the County Court judge adopted an approach that couldn't be more different. Here, the judge did not consider the extrinsic evidence, such as topographical features and instead focused almost entirely on the Land Registry plans and the fact that he could not see evidence of a boundary agreement.
    In Bowler v Wallis (Court of Appeal, 19 May 2010), the trial judge considered an agreement within the original conveyance but also placed great importance upon common sense, the likelihood of another person making the same decision and health and safety considerations when handing down judgment. The Court of Appeal later disagreed with their methodology and adopted the more traditional approach of only considering the agreement within the original conveyance to determine where the boundary line was.
    These differing approaches are the reason why we will always warn our clients that there really is no way of ever being certain as to how a judge might decide on a case. We will therefore suggest court action as a final option once all other options have been exhausted.

We have a specialist team with much experience in dealing with boundary matters, which are happy to help and advise you. If you require their assistance, please feel free to call us on 01245 216 050.

© Alexander Lawyers LLP
05/11

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Lasting Powers of Attorney

  • The Mental Capacity Act comes into force on the 1st October 2007. With effect from that date Enduring Powers of Attorney will no longer be valid documents for individuals to enter into, although any Enduring Powers of Attorney entered into prior to the 1st October 2007 will remain valid subject to appropriate registration if the need arises.
     
  • Lasting Powers of Attorney are intended to give people more choice to plan ahead for the future but with appropriate safeguards built in. These documents are however more complex and hence more costly than an Enduring Power of Attorney.
     
  • A Lasting Power of Attorney enables people to set out their wishes in a comprehensive way. There are in addition rigorous safeguards and in particular a Lasting Power of Attorney must be registered with the Office of the Public Guardian (which with effect from the 1st October 2007 replaces the Public Guardianship Office) before use. A central register will be kept of all Lasting Powers of Attorney which means that it will then be easy for anyone to check the validity of a document presented to them. This is intended to prevent fraud and abuse.
     
  • In addition to the above up to five people are to be notified when the Lasting Power of Attorney is submitted for registration. This is again a crucial safeguard to allow any of those individuals to object to the registration if they suspect that the person granting the power of attorney was unduly pressurised into making it.
     
  • A further safeguard is that a certificate will need to be provided to confirm that at the time the power was drawn up the person granting it was fully aware of what he or she was doing and that no undue pressure was placed upon that person. The certificate can be completed by a range of people, including someone who has known the individual concerned for at least 2 years. If the person granting the power does not name anyone to be notified (as indicated above) in the application for registration, then two certificate providers are required as a safeguard.
     
  • Enduring Powers of Attorney were widely recommended for use by a full range of people because they were easy and cheap to complete. Furthermore an Enduring Power of Attorney only needed to be registered once the individual concerned became mentally incapable. A Lasting Power of Attorney will require registration straight away and this will significantly increase the costs, and it therefore remains to be seen, on cost grounds, whether there documents will be as popular as Enduring Powers of Attorney.

© Alexander Lawyers LLP
09/07

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Energy Performance Certificates
Seller's responsibility for EPC
For existing buildings that are to be sold, the building's owner is responsible for ensuring a certificate is made available to all prospective purchasers at the earliest opportunity.
For the marketed sales of homes, including homes marketed before they are physically complete, Home Information Pack (HIP) regulations will apply. Where a HIP is required an Energy Performance Certificate will follow and must be contained within the HIP.
Homes sold without marketing for sale e.g. by private treaty between family members or Local Authority housing will require an EPC on sale from 1 October 2008.

Commercial Buildings
The sale of Commercial buildings which extend beyond an area of 500m will require an EPC from 6 April 2008. All remaining commercial buildings will require an EPC on sale from 1 October 2008.

When should the EPC be provided?
The EPC and recommendation report must be made available free of charge by the seller or landlord to a prospective buyer or tenant at the earliest opportunity and no later than:

  • when any written information about the building is provided in response to a request for information received from the prospective buyer; or
  • when a viewing is conducted; or
  • if neither of those occur, before entering into a contract to sell or let.


When Is an EPC not required?
An energy performance certificate does not have to be made available if:

  • the seller believes that the prospective buyer or tenant is unlikely to have sufficient funds to purchase or rent the property or is not genuinely interested in buying or renting that type of property; or
  • the seller or landlord is unlikely to be prepared to sell or rent out the property to the prospective buyer or tenant (although this does not authorise unlawful discrimination)

Where a Home Information Pack is required, any written property particulars prepared for prospective home purchasers must either be accompanied by the whole EPC (but not the recommendation report) or include the graphs which show the energy rating of the building.

© Alexander Lawyers LLP
08/07

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Trusts and Settlements
The Finance Act 2004 and recently decided cases in the House of Lords and the Privy Council have far reaching consequences for clients who are trustees, beneficiaries or settlors of both onshore (those created under the laws of the UK and/or controlled and managed in the UK) and off-shore trusts (those created under the laws of a jurisdiction other than the UK and/or controlled and managed in a jurisdiction other than the UK). It is not just inheritance schemes entered into after 1984 that are now under scrutiny. These rules apply whether the trust is used in conjunction with a company or not.

THE PREVIOUS SITUATION
Previously, onshore and off-shore trust and corporate structures were thought, as a consequence of court decisions and the statements of professional advisers, to mitigate inheritance and capital gains tax. The changes in legislation and case law summarised below show that in many cases this might no longer be the case.

SO HOW HAS THIS CHANGED?
In general terms, under the Finance Act 2004, if the settlor retains any benefit from the trust it remains part of his or her estate. These provisions are retrospective and apply to any trust created after1984. This Act must be read subject to the two major cases mentioned below
.
The House of Lords decision in R v Dimsey and R v Allen (11/10/2001 UKHL 45 and 46) has unequivocally stated that anyone who is perceived by the revenue to have a 'benefit in kind' or to be taking part in the 'control and management' of a trust or offshore company can be held to be a 'shadow director' or a 'shadow trustee'. The effect of this is that the legality and any protection offered by the structure may be lost. Any act of concealment of any beneficial interest or benefit in kind has been held to be an act of control and management and, of course, may constitute a criminal offence. So called 'excluded property' or 'excluded asset trusts' may no longer be effective whether set up onshore or off-shore.

Discretionary trusts both onshore and off-shore may be scrutinised since the Privy Council decision in Schmidt v Rosewood Trust Ltd. (27/03/03 UKPC 26). The court can question the exercise of the discretion of the trustee including the vesting of the assets as to whether they are reasonable or not thereby reducing the effectiveness of the trustee's discretion. These decisions go further than the Finance Act 2004 itself.

Anyone who is associated with assets falling within the above types of structure may need to reconsider their position and take fresh legal advice. One solution may be the use of the private international law vehicle known as the 'private foundation'. This is an internationally recognised lawful structure that may, if properly constituted, exclude the revenue's jurisdiction to tax assets. It may therefore provide a lawful solution where the trust can no longer do so and prove a cost effective way of restructuring any type of property holding and provide effective lawful estate planning.

© A© Andrew Sharpe
03/06

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Joint Ventures & Distribution Agency
A few recent Court of Appeal decisions have highlighted the scope of Commercial Agents. These decisions have given guidance to the extent to which regulations can be used by self-employed, intermediaries or consultants to successfully obtain remuneration from defaulting companies. Other recent developments illustrate the fact that the rate of commission which the parties may not have included in an agreement can be assessed or determined by the Court.

The most recent decision was that of Lonsdale v Howard & Hallam Limited. The Claimant in that case, Mr. Graham Lonsdale, was a commercial agent for the Defendant Howard & Hallam Limited. As a result of the termination of the Agency by the Company Howard & Hallam Limited, the Commercial Agent Mr. Lonsdale made a claim for compensation. Howard & Hallam had determined that Mr. Lonsdale's compensation should be in the sum of £7,500.00. However Mr. Lonsdale did not agree and began proceedings in the Oxford County Court for the sum of £19,670.00 which was equivalent to two years gross commission. The relevant law was interpreted by the Court of Appeal as not dealing with the way in which compensation should be assessed. The Court considered the decision of King & Tunnock and that decision concluded that what is compensated is the termination of its relationship not future losses. It is therefore important to remember as a result or consequence of termination of an Agency that the principal will not be liable to damages as one would normally interpret them under a breach of contract claim. The Court of appeal dismissed Mr. Lonsdale's appeal stating that whilst the award of compensation was very broad it was not too low in the light of the evidence regarding the commercial relationship between the parties. The commercial relationship between the parties was such that the Company Howard & Hallam had been suffering severe losses prior to it terminating its relationship with its commercial agent and the Court determined that this was a necessary factor to be taken into account in the assessment of compensation.

The internet boom is certainly not over and although the high levels of activity of start ups in the late 90's both in the USA and in this country will not be repeated the software distribution and Value Added Reseller agreements are still vital tools for any corporation or business to protect themselves against infringement. The overriding considerations for corporate clients will be the desire to protect their legal and contractual rights by drafting an agreement which is capable of being understood, staying within budget for legal fees, anticipated legal problems and future issues such as assignment, mergers or acquisitions and anticipating internationally issues as well as domestic considerations. We can provide Distribution or Agency agreements to cater for most clients needs and to save the cost of litigation although this cannot always be avoided. It is vital that advice is sought at the most earliest stages of undertaking operations in the United Kingdom and European Union.

© Alexander Lawyers LLP
08/07

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Offshore Financial Centres
There have been rapid developments in the reporting of activities connected to Offshore Financial Centres and these Centres remain at the forefront of efficient tax planning. It is common misconception that the answer to all the UK residents tax issues is to either incorporate or set up an Offshore Company to legitimately avoid taxation, or merely to move to an Offshore jurisdiction. The latter is by far more the most efficient tax planning method but it should be emphasized that some taxation will still be payable if the UK resident has income which is generated within the UK.

A significant development in connection with Trusts is that as a result of the Chancellors Budget new rules apply from the 22nd March 2006 regarding the Inheritance tax treatment of Accumulation and Maintenance Trusts and Interest in Possession Trusts. The rules align the Inheritance tax treatment of the majority of such Trust with the treatment of discretionary Trusts. What these new rules basically do is to curtail significantly the use by UK residents of Trusts for the avoidance of tax.

The tax treatment of non-UK residents is entirely different to that of UK residents and here there are a variety of schemes or plans which can be utilised in order to cushion the effects of taxation. The International Trust concept where the settler creates a valid Trust with property or assets held in the UK in an Offshore legal entity such as the British Virgin Islands etc, is still an important and effective solution for non-UK residents to protect UK assets. It is important to emphasise as with all planning on tax issues that it is crucial for the client to obtain guidance on establishing the most appropriate ownership structure for his or her circumstances. The issues which are relevant in making the decision are; the residence of the client and his spouse, whether or not the parties are likely to live in the UK long enough to be deemed residents in the UK for Inheritance tax purposes, the value of the property and the value of any improvements; whether or not it is a cash purchase and for what period each year will the property be occupied by the client and his family. It is once again the residence of the client which is of crucial significance. If he or she is here for less than 90 days a year he/she will not be treated for UK income purposes as being resident and the traditional Trust Company should be employed. This is subject to the caveat that any activity by the client should be avoided which may be construed or interpreted as generating income from a Company in the UK. Once again it is important to emphasize that as in the case of any tax planning, adequate time should be allowed to access the best legal advice.

© Alexander Lawyers LLP
08/07

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Useful tips when Letting your property
(OR PURCHASING A LET PROPERTY)

  • If you are granting a shorthold tenancy make sure that the agreement covers all the terms you have agreed with your Tenants. Anything you have agreed which is not incorporated within the formal agreement may not be enforceable.
  • If you are buying a property to Let with the assistance of a Mortgage make sure that you comply with all mortgage conditions applicable to Letting the property.
  • Sometimes it is more cost effective to grant a Shorthold tenancy for 12 months with a break option for either party to terminate after 6 months. This can save the cost and aggravation of renewing the tenancy.
  • If the property is tenanted when purchased, serve a Section 21 Notice under the Landlord and Tenant Act immediately following your purchase of the investment property. This will give you the option to terminate the Tenancy at the earliest moment should the tenant not work out.
  • If you are letting your own property, serve a Section 21 Notice shortly after granting the tenancy for the same reasons as identified above.
  • There are two forms of Section 21 Notices. Make sure that you use the correct form of Notice as this could affect your application for possession of the property.
  • A Section 21 Notice must give a minimum of 2 calendar months notice to your Tenant.
  • You cannot terminate an Assured Shorthold Tenancy earlier than the end date specified in the Tenancy Agreement without a valid reason.
  • If the Tenant still does not depart from the property at the expiry of the Section 21 Notice then court proceedings for possession can be commenced. These can take up to 3 months before a result is achieved.
  • If you have taken court proceeding against your tenants do not demand and/or accept any payment of rents otherwise you may prejudice your position. The rent due over this period should be dealt with as part of the court proceedings.

© Alexander Lawyers LLP
08/07

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Health & Safety: More onus on you
The Health & Safety Executive (HSE) has now introduced revised regulations (CDM 2007) which came into force on 6th April 2007.

This revision is clearly aimed at reducing accidents and ill health in the construction industry.

In domestic cases building owners still have no such particular duties, but designers and contractors must comply with CDM 2007.

On larger commercial projects clients, designers, and contractors have additional duties. For example the client must appoint a CDM Co-ordinator (the successor to the Planning Supervisor) and a Principal Contractor. There now has to be a Construction Phase Plan and at the end of the project a Health and Safety file which, as before, is handed over to the client.

Under the new regulations there is a much wider definition of design, which now extends not only to operations but also to the co-ordination of design works. Designer includes for these purposes a quantity surveyor. In every major building project a Senior Co-ordinator must now be appointed.

The party who commissions the design is the party responsible. Complex issues may arise under the new regulations, for instance where a contractor takes over another's work based on a prior design and the employer uses this to his detriment and cost. At Common Law the contractor may remain responsible, except where he uses JCT 2005 with the express reservation that he is not responsible for checking the design.

Other changes include the renaming of the pre-construction phase Health and Safety Plan which is now called the Pre-construction information.

Here the onus is on clients to ensure that others are responsible for checking the Health and Safety arrangements.

No work can start on site unless until the Health and Safety Plan has been prepared.

Importantly where design has been carried out abroad, the person commissioning that design will be responsible for compliance under CDM 2007 and if the designer is not within Great Britain then the client will be responsible for the design.

These regulations extend to all contractors so that contractors are responsible for ensuring that before the start of a project suitable welfare provisions exist on site and will continue throughout the project. The client also has a duty to ensure that such arrangements are made prior to start on site.

In summary a tightening up of the regulations with fewer escape routes.

© Alexander Lawyers LLP
08/07

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Access to Neighbouring Land Act 1992
The Act enables anyone who needs to carry out works on their property ("dominant land") which can not be done without access to adjoining land ("servient land") to obtain that access subject to obtaining an Access Order from the Court.

The applicant must:

  • Be the person who needs to enter the servient land; and
  • Need, but does not have, consent to enter.

The Court must be satisfied before making an Access Order that:

  • The works are reasonably necessary for the preservation of the whole or part of the dominant land; and
  • The works cannot be carried out, or would be substantially more difficult to carry out, without access to the servient land.

The Court will not make an Access Order where:

  • The use or enjoyment of the servient land by the owner or occupier would be disturbed; or
  • The owner or occupier of the servient land would suffer hardship to such a degree that it would be unreasonable to make the Order

Basic preservation works include:

  • Maintenance, repair or renewal of any part of a building;
  • Clearance, repair or renewal of any drain, sewer, pipe or cable;
  • Treatment, cutting back, felling, removal or replacement of foliage which is, or is in danger of becoming, damaged, diseased, dangerous, insecurely rooted or dead;
  • Filling in or clearance of any ditch.

Works may be considered reasonably necessary for the preservation of the dominant land even if they involve:

  • Alteration, adjustment or improvement to the dominant land; or
  • Demolition of the whole or part of a building.

An Access Order will specify:

  • The works which may be carried out by entering the servient land;
  • The particular area of the servient land that may be entered; and
  • The date on which, or period during which, the servient land may be entered.

An Access Order may:

  • Impose such terms and conditions the Court considers reasonably necessary to avoid or restrict any loss or inconvenience;
  • Require the payment of a fee to the owner or occupier of the servient land for access;
  • Require the applicant to pay other costs, such as the costs incurred by the owner or occupier of the servient land for dealing with the Court application.

© Alexander Lawyers LLP
05/05

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These briefing notes should not be regarded as constituting legal advice in relation to particular circumstances. These briefing notes are merely a general comment on the relevant Law. If specific advice is required in connection with any of the matters covered by any of these notes, please contact the office for assistance.

Alexander Lawyers LLP 
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