Three common property issues frequently affecting the education sector

1. Service occupancy and service tenancy issues

Service occupancy arises where an employee is required to live at their place of work (in this case, the school/university) because it is essential for the performance of their employment duties or where their employment contract specifically requires them to reside in a particular property to better perform their duties.

We have been supporting clients in the education sector in understanding whether service occupancy is the best way forward, and if so, advising on and drafting service occupancy agreements between the parties which grants the employee (usually a teacher or caretaker etc.) a licence to occupy a property. Factors to consider when making this decision include:

• Do you intend to charge a rent or licence fee for the employee’s occupation?
• Is the property essential for their job?
• Will the employee have exclusive occupation?
• Is the occupancy right personal to the employee?
• Will there be a fixed term?
• Are there any tax implications?
• What happens if you terminate the employee’s employment or need to take back possession of the property?

When it comes to termination, the desired outcome is typically that when an employee’s employment contract comes to an end, so does the service occupancy agreement. Again, like all licences to occupy, the utmost care must be given to comply with the Protection From Eviction Act 1977 to avoid allegations of an illegal eviction or other practical and sensitive issues.

2. Boundary, rights of way and easement issues over school land

Some education providers may own various parcels  of land which are not necessarily in constant use by the staff or pupils, which is likely to be a valuable asset. However, there may  be issues relating to controlling access to and keeping safe such land, and being at risk of claims for boundary, rights of way and easements from third parties.   For example, we often see scenarios for education clients where the public has used fields or pathways for a long time without permission and seek to declare that right as a public right of way. This can create issues such as:

• Who is responsible for checking and monitoring access to your land?
• Do you want the public to use it in this way?
• Does it create any insurance, health and safety issues for them and/or your pupils/staff?
• What if you want to build over a right of way to build a new classroom or facility?

When it comes to boundaries, rights of way and easements, the law can be difficult to navigate. On occasions, there can be ancient rights of way or laws involved which can affect your ability to use your land.

Use of the l and is also often linked to trespass and nuisance issues such as unauthorised or unwelcome use of school land and how to prevent it.

3. Issues when buying, selling or dealing with land or buildings

There may be occasions where an education provider wishes to buy, sell or lease all or part of its land or buildings, for example when leasing a site to a nursery or after-school club provider or mortgaging the land to raise funds. Typical issues we encounter in these scenarios include:

• Is the land publicly-funded? What restrictions does this bring?
• Do you need consent to a sale, lease or building works and who from?
• Can you get a mortgage over the land, or is there any existing mortgage over the land which is still enforceable? We are currently advising a college about this.

Our highly experienced Property Disputes team can help you understand your position when it comes to managing your land. Please do get in touch.