It is a very interesting way of granting the consent and I am surprised that the solicitor acting for the person wishing to build the garage allowed it to happen because with a licence, it can be withdrawn.
For there to be an easement of support, either under the doctrine of Lost Modern Grant under the Prescription Act, then the right was to have been exercised without consent or objections and not in secret. Here, there was consent by virtue of the licence and the licence can be revoked either on reasonable notice the notice specified in the licence.
Here, there is 12 months notice required.
The reason for registering the Deed at the land Registry would be so that any future occupiers of the property were aware of the existence of the licence and the potential for it to be revoked.
With regard to the perpetuity period, it doesn’t necessarily apply here because it applies to wills and trusts land but under the Perpetuities and Accumulations Act 2009, it was increased to 125 years in any event. The reason it doesn’t apply to land is because it would mean that any interest in land was uncertain.
Going back to the land Registry point, it depends whether whoever bought the property was advised of the existence of the licence or whether any reasonable search would have revealed it as to whether those with the benefit of the licence could rely on it. If the person who sold the property gave details of the licence to the buyer, the buyer has notice of it and is bound by it and the person with the burden of the licence can revoke it.
If however the licence was sitting in next door’s drawer and no reasonable inspection by the buyer of the property that needs the support would ever have revealed its existence, then the buyer buys free of the licence. What the next door cannot do is simply produce a licence out of the bottom drawer and wave it in front of next-door and say that they are bound by it and that they are going to remove the support. It comes down to whether when the buyer needing the support, bought the property, the licence was brought to their attention by the then seller. That is why it would need to be either in the deeds bundle if the property was not registered the land Registry or will need to be registered at the land Registry if the property is registered , to give it a legal effect and to give notice of the existence of the licence and the potential for it to be revoked.
I hope that makes sense.
Can I clarify anything for you?
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If no normal reasonable search which would have been undertaken by a prudent conveyancer would have revealed this and if it was not disclosed as an overriding interest in precontract enquiries, then a buyer takes it free of the licence.
It does not have to be registered, it’s just that the buyer has to either be able to find it carrying out a global or they have to be told about it.
Otherwise, it is not enforceable.
If the property was unregistered and on first registration, way back when, it was not picked up by the registrant solicitor, it is likely to be out of time now (the limit is 6 years) for a claim against the solicitor.
However the claim would be of whoever wanted to rely on the licence against whoever was supposed to register the property back in the mists of time.
The buyer still takes free of the licence because no reasonable search under no enquiry would disclose it. It would then be unfortunate for whoever wanted to rely on the licence.