ROW/Easement allowed or not? Please help!

ROW/Easement allowed or not? Please help!

Postby poozyf » Sun Jun 04, 2017 11:21 pm

Hi there,

I hope someone can shed some light on this, I am trying to find out if a ROW/Easement for a neighbouring property over a private road on our property is allowed. The land used to be all under one title, but was split up and sold off into 3 pieces of land, so two new titles created for this purpose, and the older title was amended/updated to reflect this. However we are having serious problems with the property down the road (a commercial premises) which is allowing its clients to drive and park all over the private road which comes under our boundary. We want to reset a fence/Gate to prohibit them using it but want to be certain they do not have a ROW/Easement before so. I have got their title from the land registry to find out and our title registry also.

I have omitted names etc. just in case the person in question ever googled searched and came across this! The only reference to benefits or rights in relation to other properties are these (I have indicated which title they are from at the top):

THEIR TITLE:

(26.04.2006) The land has the benefit of the rights reserved by a
Transfer of the land edged and numbered A********** in green on the title
plan dated 16 December 2005 made between (1) ********* (2)
**********.

OUR TITLE:
(26.04.2006) The land is subject to the rights reserved by a Transfer
of the land in this title dated 16 December 2005 made between (1) ******* and (2) *********.

(26.04.2006) The Transfer dated 16 December 2005 referred to in the
Charges Register contains a provision as to light or air and a
provision excluding the operation of Section 62 of the Law of Property
Act 1925 as therein mentioned.

- Does this mean they have a provision to light/air but there is a provision from this 2005 transfer which EXCLUDES the operation of section 62 of the law of property act 1925 - which google tells me is related to ROW/easements?
-Does this infer that the land they now own has no ROW and that this provision added specifically to exclude a ROW, or am I reading this wrong and it means that we cannot claim they have no ROW? I came across a similar post that reference the provisions excluding the operation of S62 of the LPA on Garden Law when i searched in google, hence why I am posting it here.

I would also like to state that our private road is one end of a road which the remainder is council owned and it has an entrance at both ends, so it is not like they cannot use the other side, but they use our side like their own private car park, blocking us in all the time and do not care. :shock:

Thank you
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Re: ROW/Easement allowed or not? Please help!

Postby jdfi » Mon Jun 05, 2017 7:26 am

I think this is one where we really need to see a sketch drawing.

Also, look for 'definitive map' on your local council website. Does it suggest any public rights over the private road you own?
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Re: ROW/Easement allowed or not? Please help!

Postby mr sheen » Mon Jun 05, 2017 7:48 am

There are a number of relevant points to this.
The road you describe as a'road'. You also say the road is open at both ends. This describes a normal road so it is likely that there are public rights of way over and along the road.

Since the land was split into 3, it would be assumed that all rights would have been transferred with each piece of land. If your transfer includes the 'road' either easements would have been granted for the other plots or if the road is actually a public right of way then no rights would be included in the transfer since none is needed to be granted since the rights already exist. So action 1 - check the Definitive Map at the Council to determine the classification of the road to find out if public rights exist.

IMO The chances are that they have a right of way, in fact it is highly unlikely that they don't have right of way from what you describe. So in reality you may be wasting your time seeking to prevent them passing and repassing, since you are probably on a loser with that. You can check the deeds but that may not be definitive.

The next issue is what can you do about it?
In terms of parking, if you own the road, you can request that they do not park on your land. You could fence or add bollards. Again you may have problems with these options. They may have gained rights by prescription over many years and they may use this as a defence. In order to prevent them parking you will have to take them to court and prove that they are not allowed to park on your land. If the parking interferes with the right to pass and repass ie they are causing a substantial interference on the right of way, then the person being prevented from passing can sue them.
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Re: ROW/Easement allowed or not? Please help!

Postby poozyf » Mon Jun 05, 2017 10:23 am

Apologies, I do not think that the remainder of the road is owned by the council but is in fact private, owned by someone else, however the remainder of the road which also has an entrance at the other end also has a public right of way (and is indicated on the title deeds in brown), however this public right of way stops when the 'road' enters our boundary, so if you can imagine a service road that is physically one continuous road behind the back of shops, with entrances at both ends, it has a public right of way about 75% of the road up until our land begins, then the public right of way stops. Is this significant? Because it states in both our and their title deeds that we both benefit from the right of way over the shaded brown part of the road, but that is all, the remainder of the service road comes under our boundary.

As for erecting fences or bollards, we have had a private ticketing company issue PCN's but the property owners in question keep ripping down the no parking signs (although we cannot prove it is them as we haven't seen it, however they are the ONLY ones who use 'our' part of the road and let their clients park everywhere).

What do you think?
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Re: ROW/Easement allowed or not? Please help!

Postby MacadamB53 » Mon Jun 05, 2017 11:31 am

Hi poozyf,

the ownership of the land over which the road passes does not determine whether the public have a right to use the road.

if what is being discussed is a section of one continuous route and it is known the public have ROW over the remaining sections either side then, unless these other sections clearly terminate at two locations to which the public have a right to visit, it seems pretty clear to me that you're mistaking private ownership of a section of highway with a private road which is not a highway.

Kind regards, Mac
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Re: ROW/Easement allowed or not? Please help!

Postby poozyf » Mon Jun 05, 2017 2:50 pm

MacadamB53 wrote:Hi poozyf,

the ownership of the land over which the road passes does not determine whether the public have a right to use the road.

if what is being discussed is a section of one continuous route and it is known the public have ROW over the remaining sections either side then, unless these other sections clearly terminate at two locations to which the public have a right to visit, it seems pretty clear to me that you're mistaking private ownership of a section of highway with a private road which is not a highway.

Kind regards, Mac


Thanks for this, however the public do not have ROW over the remaining sections either side, only to one side and one entrance. It clearly states on the title registry and plan which part of this 'road' has ROW: 'The land has the benefit of a right of way over the land tinted brown on the title plan." this 'road' however physically continues through our property and snakes around the building out onto another exit... all of which is in our title, there is no other section on the other side that has ROW indicated, it is under our title at this end all the way until the main road. The title registry and map for both ours and the other property in question clearly states there is a ROW over the part of the land tinted in brown (as above) but where the brown tinted part ends - our property begins, and so can you not assume there is no ROW where this ends?
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Re: ROW/Easement allowed or not? Please help!

Postby MacadamB53 » Mon Jun 05, 2017 3:10 pm

Hi poozyf,

so, I turn off the main road into the "council owned" road - where does this lead to? does the "private" road appear to be an extension of this? if so, where does the "private" road lead to?

Kind regards, Mac
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Re: ROW/Easement allowed or not? Please help!

Postby mr sheen » Mon Jun 05, 2017 3:35 pm

Most unlikely that a road open at both ends only has a public right of way along a section of it. The public will have travelled the length of it so the public right of way will be all along it....most likely. You need to objectively assess this since you need to recognise your actual position as oppose to making assumptions.

If it is a public highway you are on dodgy ground engaging a ticketing organisation. Presumably no one pays the tickets.
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Re: ROW/Easement allowed or not? Please help!

Postby poozyf » Mon Jun 05, 2017 4:10 pm

MacadamB53 wrote:Hi poozyf,

so, I turn off the main road into the "council owned" road - where does this lead to? does the "private" road appear to be an extension of this? if so, where does the "private" road lead to?

Kind regards, Mac


Perhaps it would be clearer if I post a picture of the title map, its available here: https://ibb.co/fWUBqv

As you can see on the title map as it clearly states on the title registry which part of this 'road' has a ROW, too be fair I am not sure if it is in fact a PUBLIC ROW or just for those who own land adjacent to it, I think it might be the latter as the title of our property and a neighbouring property both state: 'The land has the benefit of a right of way over the land tinted brown on the title plan." However as you can see on the map, where this ROW ends, but the 'road' physically continues around our parking and out onto another main road. I presume if it is only a ROW for the land(s) adjacent to it, it is for the benefit of them only as they are the back of shops, so for deliveries etc.?

mr sheen wrote:Most unlikely that a road open at both ends only has a public right of way along a section of it. The public will have travelled the length of it so the public right of way will be all along it....most likely. You need to objectively assess this since you need to recognise your actual position as oppose to making assumptions.

If it is a public highway you are on dodgy ground engaging a ticketing organisation. Presumably no one pays the tickets.


We did not engage a ticketing organisation, it was the landlord of the building, we are leaseholders, unfortunately the landlord is useless so we are having to resort to trying to find out the legal aspects of blocking off access, then informing the landlord. I believe I am objectively assessing this, but if I appear not to be, could you objectively assess this, in your experience and given the information provided do you think it is a public highway or private land which does not give ROW to others?

thanks.
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Re: ROW/Easement allowed or not? Please help!

Postby jdfi » Mon Jun 05, 2017 5:23 pm

You may be okay.

Here is a google maps screenshot
Image

The different surfaces does lend itself to differing ownerships perhaps.

Also the southern bit of this 'track' is registered land (where you have your brown line granting you access over land of another)

Image

May I suggest you spend £3 on downloading the title of this road (£6 to include a plan) and see who the owner is.

What to do next depends on how long the occupiers of the other land have been passing over your land. If over 20 years then maybe you concede?

If less, then I would suggest erecting signs (at both ends of your land) stating "Access only for occupants and visitors to 1-28 XXX Court Only".

Stronger wording could be used. A threat (or actual deployment of) ANPR parking fines? Assuming XXX Court is a block of flats and you are on the management committee (or whatever) then discuss asap what you want to achieve.

Taking money to grant an access right is one option potentially.

*
I drafted the above before reading that you are only leaseholders. Does your lease include the precise land that people drive over? Or does the land only feature in the freehold title?
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Re: ROW/Easement allowed or not? Please help!

Postby mr sheen » Mon Jun 05, 2017 5:41 pm

Completely different situation to the original posting since as a leaseholder, actually you do not own any part of the road. You are very unlikley to be successful in court if you seek to enforce anything to do with the road.
Does your lease provide you with exclusive use of the road? What in your lease is making you think that you can seek to control the use of a road that you don't own?
The landowner has the choice of taking action or not.
Your only option is to ensure that you are getting the full extent of privileges outlined in your lease. You can't force the landowner to provide you with anything over and above your lease.
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Re: ROW/Easement allowed or not? Please help!

Postby poozyf » Mon Jun 05, 2017 6:13 pm

jdfi wrote:You may be okay.

Here is a google maps screenshot
Image

The different surfaces does lend itself to differing ownerships perhaps.

Also the southern bit of this 'track' is registered land (where you have your brown line granting you access over land of another)

Image

May I suggest you spend £3 on downloading the title of this road (£6 to include a plan) and see who the owner is.

What to do next depends on how long the occupiers of the other land have been passing over your land. If over 20 years then maybe you concede?

If less, then I would suggest erecting signs (at both ends of your land) stating "Access only for occupants and visitors to 1-28 XXX Court Only".

Stronger wording could be used. A threat (or actual deployment of) ANPR parking fines? Assuming XXX Court is a block of flats and you are on the management committee (or whatever) then discuss asap what you want to achieve.

Taking money to grant an access right is one option potentially.

*
I drafted the above before reading that you are only leaseholders. Does your lease include the precise land that people drive over? Or does the land only feature in the freehold title?


Thank you jdfi, this is very helpful, we are leaseholders, but the landlord (and owner of the freehold) is in agreement with us that it is unacceptable from the other parties, and as it is their land, they are more than happy to block access via a gate/fence etc. But the issue is the landlord (owner of freehold) are extremely slow (they are a housing association, need I say more) and we as leaseholders are essentially doing the legwork to find out IF we can restrict access (not ideal situation I know, but it is the situation we are in) hence why I am on this forum looking for some sort of advice. The land only features in the freehold title, but as I said, the housing association are more than happy to block access (we will be paying for it).
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Re: ROW/Easement allowed or not? Please help!

Postby mr sheen » Mon Jun 05, 2017 8:02 pm

Cannot imagine a HA physically blocking a roadway without getting professional legal advice.
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Re: ROW/Easement allowed or not? Please help!

Postby poozyf » Mon Jun 05, 2017 8:24 pm

mr sheen wrote:Cannot imagine a HA physically blocking a roadway without getting professional legal advice.

They are, however as with most HA's they are not very on the ball, and it has dragged on for months. HA's make you pay but you have to leave the actual decision making to them unfortunately. Hence as leaseholders we are trying to speed up the process by hopefully finding out what we can ourselves..
Which brings it back to the main issues: Does anyone know if a specific right of way over the land in question would have to be written into the title as the ROW over the brown tinted land identififed above is?
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Re: ROW/Easement allowed or not? Please help!

Postby mr sheen » Mon Jun 05, 2017 8:34 pm

Not all easements are shown in deeds.
A roadway open at both ends is likely to be subject to prescriptive easements which will not be on the deeds.

When land is divided all benefits to the original title are transferred to every title unless specifically withheld.

If you block a legitimate right of way, the beneficiaries can remove the obstruction and since they remove no parking signs they will no doubt remove gates.

If the HA obstructs the right of way, they will probably be sued and it will cost them.....hence I cannot imagine a HA physically obstructing a roadway without taking legal advice.it is particularly problematic for HA since a dispute will put all their property at that address under the category of 'in dispute'; they have corporate social responsibilities in relation to their actions in order to benefit from funding and have a responsibility to use funds appropriately. Before embarking upon a legal dispute they probably have a responsibility to take legal advice.
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