Farm access Right of way

Farm access Right of way

Postby czar » Mon Mar 17, 2014 3:50 pm

Gents

Another possible right of way blights my corner of the world.

I have a field at the back of my property. There was a really old gate not used for 20 years. Our predecessor and the deceased farmer had a verbal agreement it would not be used. When we moved in 4-5 years ago the gate was dilapidated and has not been opened for about 20 years. The deceased farmer has made another entrance to his field which has been used regularly (twice a year) for the last 20 years. There is no right of access on our deeds for anyone other than public right of way up through the field.

We repaired the field fence after consulting with the farmer and moved the gate across and into a single pedestrian gate to the edge of our boundary. We did not consult the change of gate width. we saw no reason to as the broken gate was never used.

in order to repair the fence we had to cut back a line of holly tree so our contractor could bang in the posts with tractor, we elected for stock fencing to maintain the farms choice. Once we cut back and put up the fence, 30 cm over the old fence boundary, someone told the farmer we had pinched his land. The appearance of the fence had moved because the tree line had moved back. We moved it out 30 cm because the boundary line between the field and our garden is an aggressive slope about 2 meters in height slipping into our garden. This is why the last fence fell because the posts fell out when the land slipped. we weren't really putting up a fence but repairing the farm fence at our cost. The field is unused but on the PROW we get deer hunting dog packs with their owners. We had a cat ripped to bits 15 months ago and I have 2 little girls play in the garden hence our desire to secure the fence.

Anyway, the farmer came and gave us both barrels. He is right that the line has moved but only a margin of what he is intimating. The land is not the farmers but land of a trust, managed by an estate agent. I contacted the estate agent to come out and view the work who when they saw it agreed had the fence was in the only place it could be and had they done it, they would have done the same but because we didn't consult them we now have to move the fence line to meet the actual boundary which is 2 meters less than their old fence line. The old boundary fence was off the actual boundary because of the slipping land and presumably the contractor they employed to put up the fence didn't cut the tree line back or simply worked round the slippage or both in my mind.

I am not happy to rip up the fence but will do it to put the boundary where it should be to keep the estate happy, after all they could come and rip up the fence and charge us for the pleasure, however I am loathed to replace the gate (which is what they are requesting) as I have no proof of a right of way. Could one exist after 20 years of non use if its not conveyed with the land registry and there has been an alternative which has been used???

Image[/quote]

Above is a before and an after of the gate replacement. which was put on exactly the same line. The fact their fencing contractor had put it wrong in the past was un-be-known to us. My advice to anyone planning anything is to photo the before and after. Luckily when I put up the fence I made a selection of before and after photos which show the old line 1.5 meters off the boundary and the new line 1.8 m off the boundary acquitting us of pinching 2 meters of land as the farmer shouted again and again till he saw the pictures.

Advice on the gate right of way welcome

regards

Czar
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Re: Farm access Right of way

Postby stufe35 » Mon Mar 17, 2014 4:26 pm

First thing is to sort out if they do have a right of way into the field. Ask the estate agent to provide the evidence (in the deeds for the field).


You say their was a verbal agrreemnet not to use the gate ; that and the fact that there was a gate would seem to infer a fair probability that a right exists.

Im no expert, but i believe its possible for an easement to be on the deeds for the field, but not on your deeds. Others might verify this.
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Re: Farm access Right of way

Postby czar » Mon Mar 17, 2014 4:31 pm

Thanks for the reply

I agree there could be an easement but I believe, and please correct me if I am wrong, That an easement terminates after a year of non use. I would have thought were there a right of way on the deeds for the field, assuming the land were conveyed properly a detail of the right of way would have been added to my deeds at the same time. There is nothing.

I have made an offer for the purchase of some of the land but the estate agents wont put a price on it and keep rejecting my offers. The estate agent came out and made the suggestion that a purchase might solve the issue.

before I start chasing the documentation I am trying to keep the prospective purchase clean and simple, not ruffle any feathers so to speak.
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Re: Farm access Right of way

Postby MacadamB53 » Mon Mar 17, 2014 4:42 pm

Hi czar,

Did anything come of the fact you've altered the line of the PROW?
Did anything come of the fact you've added steps to the PROW?

I have no proof of a right of way. Could one exist after 20 years of non use if its not conveyed with the land registry and there has been an alternative which has been used?

I'd say the photo of a farm gate could be considered proof someone other than a pedestrian thought they had a right to pass between the two parcels of land. The fact we know the farmer's other access is new is also telling, as is the fact the gate leads from a field on his land to a access track on yours. You'd also find it hard to explain the following if a right of way didn't exist:

Our predecessor and the deceased farmer had a verbal agreement it would not be used.

Were both properties part of the same estate at one time?

Kind regards, Mac
PS has the front gate been installed yet?
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Re: Farm access Right of way

Postby stufe35 » Mon Mar 17, 2014 4:47 pm

From your previous thread :----

[i][i]" Ps is the field yours ? If not does the owner of it also have a row through your land ?stufe35

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Report this postReply with quoteRe: existing posts on a PROW
by czar » Sat Jan 11, 2014 11:38 am

That's another tricky one. The farmer used to use it to access his field (he rents it) he agreed with our predecessor he would not and an alternative route to the field was devised which he now uses. There is nothing on the deeds suggesting that the owners have a right.

I have got a section of deed I do not understand. any ideas? "
[/i][/i]


An easement if it exists lasts for ever. I suspect from the info you have posted there is a good chance one does. To fight putting in a larger gate you need to challenge its existence.

One thing in your favour, the lack of use for the last 4 years and the fact the previous owner is desceased and the fact there is another way to access the field means a prescriptive claim for an easement would be less likely (to succeed).
Last edited by stufe35 on Mon Mar 17, 2014 4:48 pm, edited 1 time in total.
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Re: Farm access Right of way

Postby MacadamB53 » Mon Mar 17, 2014 4:48 pm

Hi czar,

I agree there could be an easement but I believe, and please correct me if I am wrong, That an easement terminates after a year of non use.

Duly corrected - you can't extinguish an easement through 1 year's non-use (or 20 years).

Kind regards, Mac
PS not all easements need documenting...
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Re: Farm access Right of way

Postby stufe35 » Mon Mar 17, 2014 4:58 pm

Czar,

I think youve handled this badly, you had an old gate which was becoming overgrown, and would have simply disappeared and been forgotton about over time. I strongly suspect now you are going to end up with a nice new opening gate funded by yourself, and a farmer using to prove a point.
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Re: Farm access Right of way

Postby czar » Mon Mar 17, 2014 5:35 pm

Good to be back :(

The easement terminating after a year. I meant if its a prescriptive easement that's not been recorded and its not used for a year it resends the easement, doesn't it?

The field is not mine, The farmer doesn't use it for anything and only accesses it through the new entrance to cut it in order to maintain his obligation to keep the Public right of way fit for use.

I have no record of the right of way to the field on my title through my land. I have downloaded the title from the Land registry for the field (utilising their click on map function) but it relates to land 2 miles away.

My intention is to purchase part of the field to sort the boundary issue and either leave in my pedestrian gate or put up the old farm gate exactly as it was, hanging on by a chain. I have kept the old gate it and the chain and old posts as the estate agent had to take my offer to a trust meeting as they only represent the actual owner. I worried the gate might have to go back in and if they decided not to sell and if they push for the gate reinstatement, and are entitled, I could easily put it back up just how it was.

Re my other gate at the front Mac. The order has been placed and were waiting the install. I do concern somewhat about the putting up of that gate though at the front.... could this easement affect it maybe??

Nothing has come back from the council re moving the line of the right of way or the gate I have been meaning to start a new thread on this but hoped the purchase would curtail the need to do so. Seems the estate agent is just messing about re a sale of land. and I might actually have to put up the gate and then hold back a grin of contempt when the estate agents returns to inspect the completed works.
Last edited by czar on Mon Mar 17, 2014 5:47 pm, edited 1 time in total.
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Re: Farm access Right of way

Postby czar » Mon Mar 17, 2014 5:43 pm

I know where your coming from stufe35 re leaving the old gate to rot into history... My intent was to move the right of way across to a boundary of my land rather than have it enter in through the gap at the wrong side of the gate. Moving the gate worked out nicely.... then run the PROW slowly but surely behind a growth of unkempt garden along my boundary as far as possible, then once the hedgerow was high enough and a barrier established, begin to look after my side and keep the PROW clean. I did ask the council for permission to put up a fence instead of this under the radar method but this would necessitate a part extinguishment and modification order. New rights of way are 3 or 4 meters wide and that would put the fence line in the middle of an access lane over which my neighbours have a right of access.
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Re: Farm access Right of way

Postby MacadamB53 » Mon Mar 17, 2014 6:10 pm

Hi czar,

I have no record of the right of way to the field on my title through my land.

If both properties were at one time in common ownership then there'd be no need to document the easement.
This is because the owner accessed one part of his own land (dominant) via another (servient).
This is called a quasi-easement.
Quasi-easements become implied easements when one part of the land is sold.
An implied easement doesn't need writing down because it is considered so obvious that only a pedant would think it necessary.

Kind regards, Mac
PS why not get the ball rolling with a reasonable offer?
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Re: Farm access Right of way

Postby czar » Mon Mar 17, 2014 6:33 pm

The whole parcel of land is 2.6 acres. I made an offer for .about 1/3 acre 10k. (they have a min purchase value of 10 k). After a meeting with them the estate agent stood in the field and marked his estimations of a 20k purchase. I about halved it and made the offer. After rejection I then reduced to less than half as a second offer but they're not interested. Although its conservation land his intimation is that the value of the land is considered in the value uplift to my property rather than its value as land.

To put it in perspective. my original; plan for the right of way was to move it into the field at the east of my land and to the south of my land outside my boundary. They suggested 25k for the footpath about 60 meters long.

Going back to the gate, does the fact the gate was unused for so long and the fact they have elected to use another entrance not help my case? I see where your coming from re the easement. My concern is that should they decide (and get planning) to build a housing estate on that land it would entail an entrance through my garden. through the iron gates at the front I battled with my neighbour to put up.
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Re: Farm access Right of way

Postby MacadamB53 » Mon Mar 17, 2014 8:48 pm

Hi czar,

photos which show the old line 1.5 meters off the boundary and the new line 1.8 m off the boundary acquitting us of pinching 2 meters

how have you established the boundary?

Kind regards, Mac
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Re: Farm access Right of way

Postby czar » Mon Mar 17, 2014 10:55 pm

The actual boundary was explained to us by the farmer which he depicted by a number of trees in a wobbley line which fall short of the actual fence line. Looking at our deeds its almost impossible to determine the boundary as the deeds don't show the buildings we have there now so markings aren't there. Literally were taking his word for it. The other marker we had for boundary (which we used when putting up the fence and changing the gate was the existing gate and fence that have been there for a good amount of time. The gate hasn't been opened for 20 years according to our predecessors when we moved in, (24 years to date). To be honest I am not too bothered about the boundary, I don't like the thought of moving the fence because where they intimate the actual boundary is needs some pretty serious retaining wall building and the fence putting on the top of it. plus the cost of the fence were pulling out will amount to 2k+

What bothers me is the field access right and the affect on my other soon to be up gate at the front of the property, Also the future of the field. Currently its conservation land so not really a problem but I fear if we agree and establish a good gate and right of way the estate agent can market it and we might end up with a builders yard or something and vehicles through our garden.

I see the problem being if they need to sell the land at the back they need to provide a right of access then the only way is through their field or through our garden. As its not used now the field is accessed through the farmers field by the farmer in his grass cutter tractor. If they sell it and they have no right through our garden it becomes essentially land locked. as there's a stream down one side and woodland at the back.

Honestly it's like we bought a right of way nightmare, everyone wants through my garden.

I think we ideally need to employ a surveyor to determine the exact boundary. Also were going to request a copy or the detail of the title deed that we might see if there is a documentary evidence of the right of access or easement. I would like to think we could win this but I suspect the easement is as you say an implied easement, IE the gate reputes there is a right of access pre established. I feel the gate will have to go up even though they really cant get a tractor round because of the way the neighbours park on the road out front.
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Re: Farm access Right of way

Postby czar » Mon Mar 17, 2014 11:09 pm

I find this interesting

Its on the boundaries forum a sticky post by Conveyancer

"4. Legal boundaries can move over time, so there is a possibility that the fence is in the right place simply because by having been where it is for long enough it has come to represent the boundary"

I think this might apply to our boundary all be it that the boundary is shifting through the erosion of land.
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Re: Farm access Right of way

Postby arborlad » Tue Mar 18, 2014 12:49 am

Something you have to bear in mind, is the difference between agricultural fencing and domestic. Domestic fencing must abut the boundary line to be effective, agricultural, will often be erected with stock control in mind and will be placed where it is most effective.
arborlad

smile...it confuses people
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