Lawyers are sometimes asked to explain the difference between unlawful and illegal. The answer to this question is simple. Unlawful means against the law. Illegal means a poorly bird of prey.
Sadly, not all questions of law are as easy to answer and this fact is illustrated by the examples below involving property rights:
- Your neighbour has a right of way over your land which has not been used for 175 years so they must have given it up. Use it or lose it…Right?
Mere failure to use a right does not on its own lead to its loss. For an abandonment of a right of way to apply to the landowner, the owner of the right must show by their actions that they intend to abandon the right. Mere failure to use is not, by itself, enough to destroy the right.
- The branches of your neighbour’s apple tree overhang your garden. So this fruit must belong to you to pick and eat. Finders keepers…Right?
As long as the tree is not under a tree preservation order, you can cut the branches back to the boundary point between you and your neighbour’s property. However, the branches and any fruit on them which you have cut down still belong to your neighbour and you should offer them back as otherwise it is an offence under the Theft Act 1968.
- Your property is subject to rights in favour of the Lord of the Manor relating to mines and minerals under your land. This is a feudal power dating back over a thousand years to the Norman Conquest and is not relevant to the 21st century. 1066 and all that…Right?
They can still apply to your land and if you do something on your land that interferes with this right to mines and minerals e.g. build a house with foundations, the owner of the right could ask for the building to be removed if it is deemed to restrict their ability to exercise their right.
- You are granted a right to enter onto the adjoining property for the purposes of repair. The wording is clear and so this right must be limited to repair only…Right?
The right to repair can, if reasonably necessary or obvious at the time the right was granted, be implied to include a right to enter, to inspect and also to read meters.
- You enter into a wayleave agreement with a utility supplier for a right of services over your land e.g. with an electricity company to erect pylons and cables. Surely, the utility supplier has a right which cannot be determined even if it prevents or restricts future development of your land so as to ensure that its customers have an energy supply. Power to the people…Right?
A wayleave is a licence which can be terminated on written notice and following expiry of the termination notice a notice to remove the line can be served. The utility supplier would then have to either pay compensation to retain the line or remove the line.
Additionally if you bought land after a wayleave agreement was entered into by the previous owner you don’t even need to terminate the agreement; just serve a notice to remove the line.
Think pylons, think profits!
Always remember that, in property law as in life, two wrongs don’t make a right.