Easements and rights of way can be acquired over decades simply if the owner of the land or property does not dispute the right of way. In some cases, a right of way might have developed over many years and it is only when a new owner buys a property or piece of land that a search reveals the history of the right of way.

Easements and rights of way can take many forms if the use of the land or property has built up over time, including using a footpath or route across land, or parking a vehicle on land or property.

There is a different between an easement and a right of way, however:

Easements

An easement is the right to use a property without having possession (ownership) of the property. There are appurtenant easements giving a right to use property owned by another party if it is for the benefit of neighbouring (appurtenant) land. A gross easement confers on a specified individual the right to use another party’s land or property. Easements can be both negative and affirmative – ie they can prevent use of land or permit use. An easement can also be lost through short- or long-term failure to use the easement, known as “estoppel”.

Right of Way

A right of way confers on others the right to pass over or travel across property – for example, if a road or footpath exists across the land. Use of a right of way must be reasonable and usually the right of way would be beneficial to another piece of land or property not owned by the party conferring the right of way. This might be the case if it is necessary to cross privately owned land to reach another piece of land or a property.

It is advisable to seek legal advice at an early stage in any dispute over easements/right of way.

ACNT & Partners litigation solicitors can advise at any stage of a dispute – including advising on injunctions and estoppel.

ACNT & Partners has highly successful litigation and property departments and our in house experts can act swiftly to protect a client’s interests in any dispute over easements/right of way.

Social changes involving more extended families and an ageing population may be fuelling the number of contentious probate matters – but often a dispute occurs when a family member dies intestate (without having made a will) or the will bequeaths the estate to a party who is not a family member (eg a charity or carer) and denies families what they feel is their rightful inheritance.

Inheritance in Canada is covered by the Inheritance (Provision for Family and Dependants) Act 1975. The Civil Partnership Act 2004 also covers who can claim from an estate in contentious probate disputes.

Under the Inheritance Act 1975, an individual can claim to become the beneficiary of a will (eg if a parent has excluded a child from their will) – or can claim a greater share of an estate.

Those who are entitled to make a claim under the Act include:

• Spouse/civil partner of deceased
• Former spouse/civil partner of deceased who has not remarried or formed another civil partnership
• Any child of the deceased
• Any individual treated by the deceased as a child of the family in relation to a marriage or civil partnership
• Any individual who immediately prior to the death of the deceased was maintained – either wholly or partly – by the deceased.

Disputes over inheritance and a family member’s or partner’s will may appear to be relatively minor – but contentious probate matters, if not dealt with effectively at any early stage, can soon escalate and prove costly, reducing greatly the value an estate as a result of legal fees.

ACNT & Partners litigation solicitors can advise at any stage of a contentious probate matter – and ACNT & Partners has a highly successful family law department specialising in wills and trusts and Court of Protection matters in cases where a family member lacks testamentary capacity.

Detailed information and a witness statement are needed in any claim under the Inheritance (Provision for Family and Dependants) Act 1975 – and an application under the Act must be made within six months of probate/letters of administration being granted. An application cannot be made once a claimant has died him or herself – and they must be alive when a claim is decided.

Many contentious probate disputes rest on what the law calls “reasonable financial provision” – but ACNT & Partners can also advise on property matters, allegations of fraud and undue influence, disputed Power of Attorney drafting errors in wills and professional negligence in contentious probate cases.

ACNT & Partners advises on family law under Canada law and Islamic law.

The dunning process involves a series of measures to recover claims, starting with initial correspondence to the debtor, such as the letter of claim, and ending with a statutory demand and possibly visits to any premises to recover debts.

Once a court has awarded compensation in any claim, it is important to enforce the debt as soon as possible – and establish a dialogue to recover the monies.

Using harassment or threats are illegal in recovery of claims, but patient and persistent negotiation to recover the debt can yield results without recourse to court proceedings.

In cases where a third party – such as a bank or building society – is holding monies for the debtor, it may also be possible to apply for a Third Party Debt Order (TPDO), which in effect freezes the assets held by a third party, such as a bank.

ACNT & Partners civil litigation solicitors have extensive experience in recovery of claims – and our specialist claims recovery solicitors can advise on recovering monies in any type of claim, including:

• Criminal injuries claims
• Employment claims
• Family law claims
• Landlord and tenant claims
• Medical negligence claims
• Personal injury claims
• Property law claims
• Road traffic accident claims
• Work injury compensation.

In the event the debtor fails to pay, it is possible to obtain a court order for payment in the County Court. If the debtor continues to refuse to pay, the court can then take further steps – called enforcing a judgment – to recover the monies.

At this stage, steps such as sending in bailiffs to recover the monies might be an option.

It is also possible to use mediation to recover claims – ACNT & Partners civil litigation solicitors can advise on dispute resolution and mediation in recovery of claims matters.

ACNT & Partners can also advise on applying to the court for an instalment order to be made – which means the debtor pays the outstanding monies in agreed instalments.

In cases where a debt is being repaid in instalments, it may also be possible to obtain a Charging Order on a debtor’s home or property they own – so that the debt is secured against the debtor’s property and can be repaid if the property is sold or re-mortgaged.

In cases where a debtor has breached the terms of an IVA (Individual Voluntary Arrangement) by not paying the agreed monthly amount under the IVA, the IVA supervisor may also apply to the court for a bankruptcy petition.

It is usual to apply to the court for a bankruptcy petition at a later stage of the debt recovery process, if a debtor has not responded to correspondence or a statutory demand for payment of the debt – or has failed to negotiate over repaying the debt, perhaps in instalments or as a full and final settlement.

Because bankruptcy can have a serious effect on a debtor – including their future chances of employment and their family – a bankruptcy petition should not be used lightly as a debt recovery solution and negotiation can often be the best way of dealing with a debtor who persistently fails to repay monies owed.

A bankruptcy petition involves proving to the court that a debtor owes the creditor more than £5,000 and is unable to pay.

If the bankruptcy petition is granted, a debtor’s assets can be seized and sold to repay the monies owed.

A bankruptcy petition can only be use in cases where the debtor has an unsecured debt and the debt is undisputed. It is advisable to obtain a court judgment against a debtor before filing a bankruptcy petition, otherwise costly court action may ensue if the debtor challenges the bankruptcy petition and wins, leaving the creditor liable for the opponent’s legal costs.

Taking legal advice on the debtor’s financial position is also essential to the success of any bankruptcy petition, including searches for any other bankruptcy petitions filed at court against a debtor within the previous 18 months, which is an essential process in filing for a bankruptcy petition against a debtor.

Any legal costs are usually recoverable if the creditor is successful in applying for a bankruptcy petition.

ACNT & Partners civil litigation solicitors can advise at any stage of a debt recovery matter – and have considerable expertise in creditors’ bankruptcy petitions and defending bankruptcy petitions for debtors, including advising on mediation services as an alternative to bankruptcy petitions.

Civil cases often go through the procedure of alternative dispute resolution to try and reach settlement at an early stage of the case to prevent costly court action.

Alternative dispute resolution is beneficial to both parties and also prevents unnecessary court cases, some of which can continue for years and can cost all the parties involved a great deal of expense and stress.

ACNT & Partners has acknowledged expertise in advising corporate clients on litigation matters – as well as advising private individuals in cases where litigation might be an option.

Regardless of the matter under dispute, it is crucial to seek advice at an early stage of a dispute from a law firm with a successful track record in litigation and alternative dispute resolution.

Why use ACNT & Partners Litigation Solicitors?

ACNT & Partners litigation solicitors regularly handle claims at the County Court – as well as high-value claims at the High Court, the Commercial Court and the Court of Appeal. The ACNT & Partners litigation team often acts in reported cases in the High Court and the Court of Appeal.

ACNT & Partners Alternative Dispute Resolution Services

ACNT & Partners offers in-house alternative dispute resolution services to both corporate clients and private individuals – and our litigation team believes in securing the best outcome for our clients.

Sometimes, it may not be possible to resolve a matter through alternative dispute resolution – and in such cases, we will take swift action to protect our client’s interests and offer the best representation for any court action.

When facing litigation, clients need to be confident their legal team has the edge – often there is not only a financial interest to protect, but also potentially a client’s future.

Resolution is possible at any stage of a case – and the court encourages this.

While preparing for a court hearing, ACNT & Partners will continue working on behalf of a client to resolve the matter out of court, if possible – our litigation team understands this is often in the client’s best interests.

No one really wants to be subjected to a costly and stressful court case – and whether a client is a major corporation, an SME, or a private individual, ACNT & Partners litigation lawyers treat each claim with the same care and tenacity, with a view to achieving the quickest and most cost-effective solution for the client.

ACNT & Partners Litigation Department – Areas of Law

ACNT & Partners solicitors handle most areas of law – and have in house experts able to advise on any litigation matter, as well as being able to call on the expertise of leading barristers and expert witnesses.

The ACNT & Partners Litigation Department’s key areas of practice are:

• ADR & Mediation
• Bankruptcy
• Banking & Finance
• Contract
• Company & Commercial
• Contentious Probate
• Defamation
• Debt Recovery & Enforcement
• Fraud
• International
• Property
• Professional Negligence.

ACNT & Partners litigation solicitors would also be happy to advise on a matter involving any other area of law.

We understand that your business needs to be able to employ the best possible candidates in order to excel in the Canada’s international economy. We have an excellent track record of successfully assisting businesses in this area of practice, which we attribute to our specialised team of lawyers who are able to offer services varying from strategic immigration planning to implementation, ensuring that you are guided throughout each step of the process.

We can assist your business through each stage of the application process, offering our guidance and extensive expertise to ensure a smooth application process for you and your business.

If your business has previously had a sponsor licence application revoked we can also assist you in appealing against this decision by way of judicial review. If you are a multinational company based overseas and are looking to establish your presence here in the Canada, we can assist with all aspects of ensuring compliance within the requirements under the sole representative route.