Land Registration And Land Surveying

By Author: Lula Horn
Total Articles: 38
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Introduction

The Land and Conveyancing and Law Reform Act 2009 came into effect in stages between December 2009 and January 2010. Whilst the section prohibiting upwards-only rent reviews has received most publicity other provisions of the act will have an impact on property owners and building professionals and practitioners.

General Description of the Act and pertinent excerpts

The Act formalises, modernises, combines and repeals numerous statures, acts, common law and practices dating back many centuries (including feudal systems dating back to the Norman period) and provides a comprehensive statutory basis for Land and Conveyancing Law.

The definition of "land" has been amended to include airspace "Above the surface of the land ... which is capable of being or was previously occupied by a building ... and any part of such airspace...". This allows for the transfer of, for example, as yet un-built apartments.

The Act clarifies the concepts of "legal" ownership and "equitable" or "beneficial" ownership and abolishes the creation of certain anachronistic and obsolete ownership types.

Matters ...
... relating to party structures

Of particular interest to property owners and building professionals and practitioners is Part 8, which deals with "appurtenant" (or incidental) rights such as easements (e.g. rights-of-way) or usage rights. The easements referred to are generally those established by usage (or extinguished by non-usage) rather than those established by way of legal agreements.

One of these "appurtenant" rights is a right of access to repair and maintain or carry our works on party structures or on structures so close to a property boundary that such works are impractical without access to the adjacent property. This replaces the Boundaries Act, which dates back to 1721.

Effectively this part of the Act prevents one property owner from unreasonably refusing permission to an abutting property owner to enter their lands to carry out work on a party structure, subject to the lands being made good on completion and payment of reasonable costs (to cover professional fees and compensate for inconvenience), indemnifications etc. This can be applied equally to the maintenance of a hedgerow, the construction of a domestic extension up to a property boundary, the construction of a dividing wall between two areas of development land under different ownership or the construction of a structure so close to a property boundary as to make it impractical without access to adjacent lands. All of the preceding examples being, of course, subject to planning permission or exemption from same. The act also allows for the benefit (if any) of the new structure to the adjacent land-owner to be set against the costs to the adjacent land-owner of facilitating the works.

The Act defines Party Structures as being either vertical or horizontal, i.e. they include horizontal divisions between properties above and below each other.

Comment

The Act in its entirety has been generally welcomed as it replaces with a single Act some 150 pieces of legislation dating back nearly 400 years.

The section relating to works on party structures reviewed above is welcome as it provides a legislative remedy to the unreasonable or mischievous prevention of permitted works by parties that find themselves in a disproportionate position of control over a development or building whilst ensuring that adequate property restoration and compensation is made available to the affected land-owner.

It also allows new party structures between folios to be created on a property line, rather than entirely within one property and to be worked on from both sides. It is worth noting that the Property Registration Authority (formerly the Land Registry), under the land registry rules for mapping and in the absence of specific information to the contrary, tends to map properties to the nearest feature mapped on the Ordnance Survey and show them this way on Folio Maps. Party Structures build to one side of a boundary may become the "de facto" boundary with time and subject to adverse possession by the owner on the other side.

Gordon White is a Chartered Engineer, a Director of Fahy Fitzpatrick Consulting Engineers and has 15 years experience in dealing with Land Registration and Property Registration issues, Legal Mapping, boundary dispute resolution and related matters. Visit us: http://www.fahyfitzpatrick.ie/ .