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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9595
Experience:  I have been practising for 30 years.
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I have in front of me a Counterpart Licence dated 12th

Customer Question

I have in front of me a Counterpart Licence dated 12th November 1957 bearing the appropriate judicature stamps, granted by the owner of a next door property (The Licensor)
to his neighbour(Licensee) to erect an adjacent garage effectively using one of the walls of the Licensor's existing garage as a supporting wall to the new garage. The Licence makes reference to their successors in title, but not in perpetuity, and provides for 12 month's notice of revocation of the Licence on either side, effectively entailing the demolition of the License's garage, which has partly been converted for domestic use, if given by the Licensor. The Licensor has now informed the Licensee that it is their intention to apply for planning permission to construct a 2 storey side extension which would indeed require demolition of the Licensee's garage.
The question is, is the Licence still effective in law nearly 60 years on and/or could it be equitably varied to meet the needs of both parties? Alternatively would the Licence need to have been registered with the Land Registry to be effective?
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.

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the solicitor acting for the person wishing to build the garage allowed it to happen because with a licence, it can be withdrawn.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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Best wishes.

FES

F E Smith and other Law Specialists are ready to help you
Customer: replied 1 year ago.
Many thanks for your reply which was most helpful, and apologies for this delayed follow up.
If it can be confirmed that the Licence was not registered with the Licensee's deeds and cannot be searched at the Land Registry, can you confirm that the Licence is null and void? If this is the case how do you suggest the Licensor be notified?
On the other hand if it turns out that the Licence was registered with the Licensee's deeds and not picked up by solicitors on purchase, what course of action would you suggest?
Customer: replied 1 year ago.
I would appreciate a response to the question(s) posed in my email dated 16 July
2016.
Many thanks.
Expert:  F E Smith replied 1 year ago.

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.