Right of way on my register but not on the other register

Right of way on my register but not on the other register

Postby Dentho » Wed Apr 19, 2017 5:13 pm

Hi
I hope someone on here can help me. I have a registered right of way, by foot, for all successors of my property across some land that when the conveyance was done(1972) was owned by a chalet park. At that time the bungalows were owned privately but the owner still owned the freehold of the land. My right of way runs across 2 gardens as such though they weren't fenced off. Recently the chalet owner has been selling the freehold of the land. One of the bungalow owners bought some of the land that my right of way runs over a couple of years ago and it has changed hands about 3 times since. To cut a long story short, it has been fenced off..all access is blocked and I am trying to sort it out. The present owners are adamant that there is no right of way.
I contacted land registry as after downloading the register of the land affected it did not show any right of way. Land registry looked back on the history of the land and found that the same 1972 conveyance was mentioned on the original land that this persons garden was transferred from..but obviously not on the newly registered land!.
It has now been referred to customer support at land registry for them to look into..though this could take a while.
Could anyone tell me if..for instance the chalet park owner did not disclose the right of way in the transfer ...if my right of way is still valid?
Dentho
 
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Re: Right of way on my register but not on the other registe

Postby despair » Wed Apr 19, 2017 5:38 pm

A ROW can only be extinguished by express legal permission of all parties and the payment of compensation plus the legal costs of altering all the relevant deeds
sounds like you have a big legal case
trust you have
legal expenses cover on your mortgage / insurances/credit cards / union membership
check and double check
despair
 
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Re: Right of way on my register but not on the other registe

Postby Dentho » Wed Apr 19, 2017 5:44 pm

Hi
Thank you for your reply...I have no legal cover on my house insurance not sure about credit card..will have to check on that.
Can you clarify...do you mean that the right of way would still be valid but the legal battle would be with the neighbour who has blocked off my right of way?
Dentho
 
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Re: Right of way on my register but not on the other registe

Postby MacadamB53 » Wed Apr 19, 2017 6:15 pm

Hi Dentho,

the right of way exists until it is either extinguished by deed or as determined in court based on evidence.
so your ROW still exists.
your neighbour and his predecessors may have a case against the original vendor if he did not disclose the ROW, but that is their business and does not affect the fact you own a ROW over the land.

Kind regards, Mac
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Re: Right of way on my register but not on the other registe

Postby Dentho » Wed Apr 19, 2017 6:19 pm

Many thanks
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Re: Right of way on my register but not on the other registe

Postby despair » Thu Apr 20, 2017 9:08 am

Good house insurance includes legal cover
or you could have added it for £25
its crazy in this day and age not to ensure your covered for actions if the idiots in this world
it can also cover you when taking someone to court over injuries sustained by someones actions
despair
 
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Re: Right of way on my register but not on the other registe

Postby Dentho » Thu Apr 20, 2017 10:03 am

Yes...false economy I know...had it for years then for the last 3 after changing insurance companies didn't..
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Re: Right of way on my register but not on the other registe

Postby pilman » Thu Apr 20, 2017 1:43 pm

The present owners are adamant that there is no right of way.
It may be sensible to copy the conveyance dated 1972 and write to the owner of the servient land enclosing a copy of the 1972 deed.

You can point out that the granted right of way is a Legal Interest over his land that you own, which was an over-riding legal interest when he acquired ownership of the land.

When you bought your property the law considered that you bought the Legal Estate of the physical property, which included the land and all building erected on that land, and you bought a Legal Interest over the retained land owned by the seller in 1972. The right of way was the easement that the law recognised as a Legal Interest over land which was conveyed to you along with the Legal Estate.

The Law of Property Act 1925 is still the relevant statute in 2017, so you need to make the new owner of the servient land aware that he has no right to stop your access over the route that ought to have been identified on the 1972 conveyance plan.
This is what section 1 of the LPA 1925 stated, with some explanatory words I have added in bold:
1 Legal estates and equitable interests.

(1)The only estates in land which are capable of subsisting or of being conveyed or created at law are—

(a)An estate in fee simple absolute in possession; "normally referred to as the Freehold"

(b)A term of years absolute. "normally referred to as the Leasehold"

(2)The only interests or charges in or over land which are capable of subsisting or of being conveyed or created at law are—

(a)An easement, right, or privilege in or over land for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute; "The Legal Interest that was conveyed with either a Freehold or Leasehold title"


Despite the fact that Land Registry had failed to record on the neighbour's register title that the land was burdened by a right of way, that was the over-riding legal interest that had existed since 1972 and cannot be removed or obstructed without a legal deed of extinguishment being executed by each party.

You need to make the neighbour aware of those facts, as he is in the wrong and you are in the right to demand free access over a legally granted right of way.
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Re: Right of way on my register but not on the other registe

Postby Dentho » Thu Apr 20, 2017 2:14 pm

Thank you very much Pilman for your advice ...that is extremely helpful.
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Re: Right of way on my register but not on the other registe

Postby Dentho » Thu Apr 20, 2017 2:15 pm

I will let you all know in due course how I get on
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Re: Right of way on my register but not on the other registe

Postby despair » Thu Apr 20, 2017 7:07 pm

did you buy the property when the old insurance policies were in force because you can still claim on the previous policy
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Re: Right of way on my register but not on the other registe

Postby Dentho » Fri Apr 21, 2017 5:19 pm

It was way back in 2002 when I bought the house
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Re: Right of way on my register but not on the other registe

Postby akwe-xavante » Tue Apr 25, 2017 3:10 pm

I'd stop and just think things over or even seek professional advice first.

If you formally rattle your neighbours cage about the ROW then purchase an insurance policy afterwards to cover any possible costs you knew beforehand that you were going to make a claim on the policy. The insurance company rightfully will refuse to pay up.

I'd think about buying an insurance policy or indemnifying your rights to your ROW before you rattle anybody's cage. Buy a policy and keep a low profile, don't get involved or rub them up the wrong way for say 6 months then set too and claim expenses on your insurance policy. I did this and I'm very very very pleased I did because the process would of cost me a serious amount of money if I hadn't. I indemnified my rights to two ROW's on the advice of a solicitor, waited six months then kicked the hornets nest kinda thing.

However it does look as though Land Registry have messed up, I suspect they'll put it right at there own expense on your behalf, your neighbour won't be very happy. I would still seriously consider indemnifying your ROW though.

I would suspect that even though land registry will rectify the issue and make your neighbour aware of the problem, they'll have to, I suspect that your neighbour may challenge the issue. They may formally and eventually accept you have a ROW but will probably do whatever they can to make it difficult for you to exercise the use of your ROW "Human Nature" will always get in the way, sour grapes.

Land Registry may put there mistake right at there own expense but I suspect that you'll probably have to fight on at your own expense afterwards. Your neighbours may then get letters to open up fences etc to allow you through but in reality promise and then delay and further delay doing so in the hope you give in.

I would ask about indemnifying your rights, it's a one off (Single/one Payment) insurance policy that can be passed on successors in title forever.

It looks as though your neighbours genuinely believe that no such ROW exists unfortunately.
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Re: Right of way on my register but not on the other registe

Postby Dentho » Mon May 22, 2017 7:03 pm

Hi,
Many thanks for your advice...things have changed a little but what you said would happen is happening!
I have now got legal cover on my insurance as my renewal was up recently..will have to look into this indemnifying my row ..have heard of it but not that knowledgeable on it.
Land registry got back to me and said that the right of way was correctly transferred to the register when it was first transferred from the original title in 2015. I find it hard to believe that they didn't know this...wouldn't it have come up through their solicitor in the purchase?..anyway they have accepted that there is a right of way and said all screws and padlocks would be removed. The screws were removed from the first gate..we then proceeded towards the final gate..the alleyway leading to it was piled up with garden waste and big sheets of hardboard which we had to climb over..finally getting to the last gate moved the bolt across but couldn't shut it properly again as it is a high door so couldn't reach over..if we had wanted to use it from the other direction we couldn't have got through...where do we go now...say anything or not?
Would welcome any advice.
Would like to add that I have only dealt with the father of the owner of the land we have the row over as he doesn't want his daughter upset as its her first property and she's only 21. I feel bad for her and can imagine she must be upset about it but also feel upset that they are making me feel like a criminal for a right of way I have always used. She has lived there for a few months but has never acknowledged our existence and just blanks us if seen
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Re: Right of way on my register but not on the other registe

Postby pilman » Tue May 23, 2017 11:25 am

What is important to understand is that the right of way does not need indemnifying, because a legal interest over land is a legal right recognised under the Law of Property Act 1925 that applies in England and Wales.

Although I explained that in an earlier posting, you still seem unsure about your current situation.

You have the legal right to exercise this right of way, which is known about by the owner of the "servient land".
That legal phrase describes the land intended to "Serve" your property, with the legal phrase "dominant land" describing your own property which "dominates" that piece of land shown as a right of way over the neighbour's land.

You can start legal proceedings to claim an injunction to prevent the neighbouring property owners from causing a "substantial obstruction" to your granted right of way, together with a claim for damages, because of such an obstruction that can be proven in court.

That is the purpose of the legal cover now included in your home insurance policy.

You would need to make a claim that this substantial obstruction has just become an issue with rubbish being deposited on the route of the right of way that prevents free access along the right of way, as well as the gates erected by the neighbour adding to the problem because it is not possible to enter the right of way from both ends if you wanted to pass and repass to and from your own property.

It seems to me that an insurance company will only agree to support such a claim if it has only become an issue after the policy was taken out, rather than a pre-existing issue that was known about prior to you adding legal cover to your home insurance policy.

Sometimes a solicitor's letter addressed to the offending neighbour may be sufficient to make that neighbour realise that court action can be taken against them and that the costs of such an action can be awarded to the winning claimant. Such a letter should warn them that the right of way must remain useable at all times with any gates remaining unlocked to allow access from either direction.
A gate with a high bolt would not be acceptable if it is not possible to reach the top of the gate from both sides.

You could write a letter yourself if you can explain that you don't want to cause a neighbour dispute, although you will instruct your insurer to begin legal proceedings if the right of way is not made available to you at all times as an unencumbered path to and from your property as required by the terms of the right of way granted in 1972.
In your last post you made this statement "Land registry got back to me and said that the right of way was correctly transferred to the register when it was first transferred from the original title in 2015."Did you know that you can obtain a copy of a register of title using Land Registry's web-site and buying a copy at the cost of £3.

Once you have a copy of the neighbour's register of title so that you can confirm that it contains a reference to the fact that the property is burdened with a right of way, that will allow you to make reference to that register entry should you decide to write to the neighbour and confirm that you will take action unless that right of way is kept permanently clear at all times for your use. It is normally the situation that a buyer will be given a copy of the register of title by the solicitor acting on the purchase, but once you acquire a copy of the register then the neighbour cannot claim not to be aware of what your legal rights are if the burden of a right of way in favour of your property is recorded on their register. Once you have bought a copy from Land Registry you can print it off and show the neighbour that you know all the facts to prevent any claim of ignorance about a right of way.
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