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Stuart J
Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 20389
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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Type your question here. If a fishing group had an access/hedge

Customer Question

Type your question here. If a fishing group had an access/hedge maintenance agreement with a landowner to use the groups fishing rights(Agreement dated 1961) would a subsequent sale of the land still leave the agreement legally valid with the new owners?
Submitted: 1 year ago.
Category: UK Law
Expert:  Stuart J replied 1 year ago.
-Could you explain your situation a little more?
Customer: replied 1 year ago.


We are having trouble with the farmer after about access and hedge trimming to maintain the ability to fish. The original landowner died in 1980 but we have only had any problems recently I have a scanned copy of the 1961 agreement which was legally draw up

Expert:  Stuart J replied 1 year ago.

Can you attach or email the agreement please? If emailing send to me at UK law experts@justanswer.com

It can take up to 24hrs to arrive as it is fwd manually. Regards

Customer: replied 1 year ago.


o.k. I will e mail it


Thanks

Expert:  Stuart J replied 1 year ago.
Thanks. I will get back to you when I have it. If I haven't by this time tomorrow, chase me
Expert:  Stuart J replied 1 year ago.




I have the documents.

Let me tell you now that there is a very expensive argument to be had here.
Let me explain why.



Ward wanted to exercise his rights to fish and the Club owned the fishing
rights (but not rights of access . So a deal was done between the Club and Ward
whereby he gave them access and he was allowed to fish.



So far so good.



If you refer to clause number one on document 0003 you will see that the
right is granted to the Company (the Club) and its successors in title (and all
its agents etc).



There is nothing in there which says that this grant was made for the
benefit of the land/stream was for the company and successors.



There is also nothing which says that the right to fish there is granted to
Ward and his successors in title.



So, successors in title is mentioned with regard to the Club being able to
pass on the right to walk along the bank but there is no mention of the right for
Ward to fish to be passed on to his successors in title.



In cases like this, when it is mentioned in one place but not in others
judges can often say that it was intended by the parties that the right would
not pass from one to another and nor would the obligation.



It is the difference between a covenant being personal to the grantor or
also passing on to successors in title.



I think that in this went to court, contrary to what I have said above,
because there is nothing to the contrary, the court would find that this right
to walk along the path only existed while Ward was alive. However, if the
current landowner wants to be awkward, regardless of my opinion, you are faced
with putting this in front of a judge to let a judge decide. Before wasting
money on court costs, I would spend probably £500/£800 on Chancery Counsel's
opinion. I wouldn't be wasting any money exchanging correspondence with
solicitors or the landowner.



I wish I could give you a definitive answer would have there was a definitive
answer to every legal question, the courts would close down overnight.



Can I help further?



Please bear with me today and over any weekends because I will be online
and off-line.

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The thread remains open for us to continue this exchange



Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 20389
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street practice
Stuart J and other UK Law Specialists are ready to help you
Customer: replied 1 year ago.


Thanks for that. I think I understand.


Since we have had uninterrupted access since 1961 will we not have a case for continued access irrespective of whether we have a written agreement?


Ken

Expert:  Stuart J replied 1 year ago.
It would have been the case if you had NOT had written agreement. To acquire the right under Prescription Act you have to use it for more than 20 years without consent or objection.



There is a technical legal argument that could help you and that is that if
their stance is successful wherein they claim that the right for Ward to fish
only lasted for his lifetime and therefore your right to access the bank only
lasted during his lifetime/ownership, then as soon as Ward died/sold (using their argument)
you no longer had consent.

If that is the case, since Ward sold/died you have been using the bank without consent.

If that is more than 20 years ago, you may have acquired a right by prescription
It would be interesting to see how they get out of that!



Customer: replied 1 year ago.


Yes. We have always paid a small sum to the landowner for what was called a wayleave (probably not the right word in this case) Last year he did not cash the cheque. Before we try to solve the problem we wanted some advice re our position.

Customer: replied 1 year ago.


Ward died in 1980

Expert:  Stuart J replied 1 year ago.




A wayleave is used for overhead power lines. The word is simply the "right"
although you could use easements but easements are generally not paid for annually on a licence. The
wording used is immaterial.

Paying him money every year is evidence of consent so the last prescription
argument fails. Can you see how important even minutest facts are?



There is something missing because no mention is made in the deed of
payment from what I remember (I have closed the docs down now). IT was a swop:
Fishing in exchange for access. I checked and it is not for money, it is in consideration of what is in the deed (common wording)

 

So payment must have been agreed by someone at some stage.

Please don't forget to
positively rate my answer service (even if it was not what you wanted to hear)
and I will follow up any further points you raise for free.

If you don't rate it positively, then the site keep your deposit and I get 0
for my time. It is imperative that you give my answer a positive rating. It
doesn't give me "a pat on the head", "good boy" (like ebay), it is my
livelihood!

Customer: replied 1 year ago.


So are you saying we cannot claim right by prescription because we make a payment?


It is so long ago I do not know the origin of the payment


. In the Ward agreement the payment was for any damage that might have been caused not access

Expert:  Stuart J replied 1 year ago.

1 That's right. It implies consent and you cannot have prescriptive right if you have consent

 

2 It would be useful to know. It has certainly come from somewhere

 

3 Yes, but that was to pay for damage it wasn't consideration

 

I wouldn't be giving up easily BUT it depends how much you want to spend if a legal battle starts.

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