A latest resolution by the First-tier Tribunal (FTT) has shed new mild on the more and more complicated Regulation of Encroachment, providing the property sector much-needed steering. The case in query, Relins v Bede Home Property Administration Firm, is being welcomed as a big step in the direction of larger authorized readability on this.
The ruling marks an vital second within the evolution of encroachment regulation, serving to to unravel the authorized uncertainty that has emerged for the reason that introduction of the Land Registration Act 2022. Performing on behalf of the profitable applicant, Paul Lakin of Alternate Chambers was instructed by Clare Castillo of Blacks Solicitors. Right here, Clare, affiliate chartered authorized government in the true property litigation workforce discusses how this resolution helps unknot the Regulation of Encroachment.
In apply
Encroachment happens when a tenant occupies land exterior their authorized lease boundary – generally roof terraces, lofts, balconies, sheds, garages, or gardens.
Latest case regulation clarifies that tenants occupying such land for 12+ years could, in some circumstances, apply to HM Land Registry to be recognised as leaseholders of that area. This specific case concerned a tenant (A) and her predecessors in title occupying a roof terrace instantly adjoining to, and accessible solely from, her first flooring flat. The terrace lay past the demise of the flat’s lease, and shaped a part of the freeholder’s title. The dispute over Anita’s possession of the terrace started when one of many 5 leaseholders within the property disputed A’s proper to occupy the terrace.
Relins v Bede Home Property Administration Firm resolution
The freehold administration firm was comprised of the leaseholders of the 5 flats, two of whom have been in dispute. The opposite three leaseholders have been conscious that the flat roof had been used as a roof terrace for a few years, however that they had not questioned whether or not A had a authorized proper to take action and none of them had opposed it. The case regarded on the authorized ideas underpinning the Regulation of Encroachment in a leasehold context and whether or not or not it’s a sort of antagonistic possession (as applies largely to freehold land) or is a separate doctrine.
The Tribunal confirmed {that a} tenant can, below sure circumstances, declare further land that they’ve occupied even when it wasn’t initially a part of their lease. In contrast to antagonistic possession, authorized possession of land in an encroachment context doesn’t must be ‘antagonistic’. The owner could have information of and tacitly settle for the tenant’s possession of the land.
The tribunal held that after 12 years of such possession, the encroachment ‘bites’ and the owner can now not deny (or is ‘estopped’ from denying) the leaseholder’s title to the land and the occupied land turns into a part of the tenant’s lease. This gives readability on the regulation and what will probably be upheld in encroachment circumstances except the owner case reveals specific cause or distinctive circumstances, of which neither utilized on this case.
Key takeaways
This case and ruling represents a optimistic step ahead in the direction of untangling the complexities surrounding encroachment regulation and gives a number of notable takeaways, together with:
- Beneath the authorized precept of estoppel, a landlord who has knowingly allowed such occupation could also be prevented from later denying the tenant’s rights. Conversely, tenants can’t deny the owner’s continued freehold possession.
- If a tenant efficiently claims the extra land, it turns into a part of their leasehold, however the landlord’s freehold curiosity stays. The tenant would assume duties for the land according to their present lease.
- Landlords who change into conscious of encroachment, and object to the tenant’s occupation, ought to act earlier than the 12-year mark to protect their rights. Nevertheless, in lots of circumstances, neither get together is conscious the occupied land falls exterior the lease. Landlords can also mistakenly assume such land is inside the tenant’s demise or have informally permitted the association.
- The place long-term occupation has occurred, landlords ought to search authorized recommendation on the best way to both reclaim or formalise the association. Likewise, tenants who consider they’re occupying land exterior their demise could also be eligible to use for formal leasehold recognition. Authorized recommendation must be sought to supply readability on rights, dangers and the appliance course of.
- To forestall unintended penalties, landlords are inspired to conduct a ‘inventory take’ of land, particularly in older or sub-divided properties, to determine any unauthorised occupation.
