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Situation:I work in amulti-disciplinary surveying practice. My supervisor is Tony Jackson who has received and e-mail from the client named ‘Alan Jones’ of NDL. NDL owns a site in Newcastle upon Tyne which is beingdeveloped to create new student accommodation. NDL have entered into a building contract for phaseone of the scheme with Clipper Ltd which is due to complete on 1 May 2017. Work has yet tocommence for phases two and three. NDL have encountered some problems about which they areseeking professional advice. Tony has asked me to carry out some research into these issues so that heis fully briefed before meeting with the client.Advice to Tony on the first issueIssue 1: On theopposite side of the streetto Phase One of the scheme there isanother developmentongoingconsisting of the conversion of warehouses into luxury apartments. The owner of that site hascomplained that theapartment block that has been constructed on NDL’s land has affected thedaylight the warehouse buildings enjoy.AdviceUnder the ‘Building and Land Management Law’, there is a term called ‘easement’ which is concernedwith the rights and duties of the owners of land. Every owner of the land has the right of support for hisland from the other pieces of land that may be adjacent to it. This is the natural right with every ownerof the land and this right exists because of the nature of land. This right can also be acquired and when itis acquired, it is called as ‘easement’ (Galbraith, 2013). Under this easement right, the owner is given apiece of land and he has the full right to use it or restrict its use if anyone else is trying to capture it oranyone else is making the land belong to him/her. Easement is of various types like (Juergensmeyer,2013):When the owner of land gets the right to cross the land that belongs to other party, it is calledeasement of way.When the owner of land gets the right to store the goods on the land that belongs to someoneelse, it is called as the easement of storage.When the owner of land gets the right to get his land’s support by any land that belongs tosomeone else, it is called as the easement of support.Lastly, and relevant to this issue, when the owner of land gets the right to capture the flow oflight to any building that is located on his land over the land that is owned by someone else.Then it is called as the easement of light.In this above issue, there is an apartment block that is being constructed on NDL’s land. This apartmentblock is restraining the daylight to enter in the warehouse buildings that are located on the oppositeside of streets. So, the owner of the warehouse buildings, who is trying to convert the warehouses intoluxury apartments, has complained about the fact that his buildings cannot enjoy the daylight due to theconstruction of apartment block on NDL’s land. In light of this issue and the concept of easement, it canbe assessed that the owner of the warehouse buildings has the right to capture the light in this building
and he can sue the other owner of land whose construction is affecting the entry of light in thewarehouse building.Easement is applicable when it burdens one piece of land called as the servient land for the advantageof other piece of land which is called as the dominant land. When the easement of light occurs, thedominant land owner can ask for the flow of light for the benefit of his dominant land. The easement isinvalid if the dominant land is not benefitted (Owley, 2015). The benefit can be in terms of increase inthe value of land or any other way. In the present situation, the easement is valid because the dominantand owner i.e. the land owner of the warehouse buildings is concerned about the daylight in thebuildings. If there is not light; the apartments will not be bought by people as everyone prefers to live inthose apartments where there is good natural light, so it can decrease the value of apartments. Thecomplaint is for the benefit of the owner of dominant land. So, easement applies here and the ownerhas the right to get restraining orders for the construction of the apartment block on NDL’s land.Then, no easement occurs if the dominant and the servient land is owned and occupied by the sameperson. This is because, if one person occupies both lands, then he will take care of his lands and he hasthe right over both of them. But, if the person owns both lands but the occupier is different like a tenetis living on one of the lands, so the easement can occur. In the above situation, the owners aredifferent, so the owner of the warehouse building can practice his easement against the owner of theapartment block.In the above situation, it is recommended that NDL owner must stop his construction or revise it as theconstruction is blocking the light from entering into the other buildings on the opposite side of road.The easement principle of the ‘Buildings and Land Management’ law makes the complaint of thewarehouse building owner valid and it is his right to get the easement of light. So, if the issue goes tocourt, the NDL owner will suffer losses, therefore, he should make the apartment block in such a waythat the other land owner right’s and issue are taken into consideration and he is not harmed.
Advice to Tony on the second issueIssue 2: When NDL purchased the site, they wereadvised by the sellerthat they hadnot experiencedany problems with neighboring owners. NDL has now however, received a letter before action from aneighboring land owner who isthreatening to bring a private nuisance claim against NDL in relation todamage caused to the foundations of their building by the roots of a tree which is on NDL’s property.It appears that they have complained about this problem in the past to the previous owner. For IssueThree you need to only advise on the remedies that NDL may have against the seller (and not on theprivate nuisance claim).AdviceUnder the Consumer Contracts Regulations 1999, a seller means a natural person, by whom the goodsand services are sold and who enters into the contract with the buyers related to his business (Galbraith,2013). In the given situation, the NDL bought the site from the seller, who sold him the good andentered into a business contract with him.Under the same regulation, there is a basic idea related to ‘misrepresentation’ in the terms andconditions of the sale of contract. In misrepresentation, a false statement is made by one of the partieswho are entering into the contract with the other party with the intention to induce the other party toenter in contract with him/her. The concept of misrepresentation is included separately in other laws aswell like the contract act, the law of tort etc. Each of these laws has regarded this concept as wrong andthe negligent statements are unacceptable in every law.Misrepresentation can be defined as the false statement made related to ay fact that one party makesto the other party at the time of making the contract and that statement induces the other party toenter into contract with him (Butler, 2013). In this situation, a misrepresentation of the fact was madebecause the seller advised NDL that they will not face any problem with the neighboring owners. But, inreality, the neighboring owners had a problems with the land that NDL purchased, they had raised thetree issue earlier too with the previous owner. So, this is very clear that the seller intentionally did notdisclose this issue to the new buyer. He just wanted to save himself from the issue and if he would havetold the issue to NDL, the buyer would not have purchased the land.For misrepresentation to happen there must be a statement which the seller intends to make so thatthe other party believes him and enters into the contract. In this case, the statement was there as hepersonally advised NDL that there was no issue with the neighboring owners of land. The, formisrepresentation, the statement must be of ‘fact’. In this case, it was a fact that ‘no issue will be facedby NDL from the neighboring owners of land’. Lastly, for misrepresentation to actually happen, the endresult should be the formulation of contract based on that ‘fact’ which also occurred in this case. NDLowner believed that the seller was making a true statement and based on that, he entered into acontract with him.This misrepresentation is of fraudulent nature. The intention of the seller was to deceit the buyer. It isdifficult for the NDL owner to prove this statement but he can use the fact that the neighboring owners