Conflicting interests PROW

Conflicting interests PROW

Postby melbatoast » Fri Jun 16, 2017 3:37 pm

Hi all

I would appreciate any advice.

I own a 500 yard accessway of which the first 425 yards is 2.5 metres, widening to 4.5 metres and then to 9 metres. There are 4 users of the accessway;

User 1 accesses their property along the narrow stretch ( previous owner and vendor of all the properties involved, under one title);
User 2 has a pumping station with pedestrian access from a parking and turning area, defined on the associated map from a deed of conveyance dated 1965, this covers the widest part and end of the Accessway. The vehicular accessway on the Conveyance is defined in brown and ends where the accessway widens and becomes a measured, yellow area for parking and turning;
User 3 has been granted a ROW on their TP1 along and over the Accessway. Their property's frontage is onto the yellow area and they have a drive to their property accessed from the brown area;
User 4 is me ( the owner).

User 3 purchased their property a few months before me in 2014 which is when the new ROW for the benefit of their property was created ( they were not made aware of the 1965 Conveyance by their solicitor, possibly because the properties were 1st registered at this point of sale)

The conflict comes from user 3 claiming that the Parking/ turning area is not for parking as this would obstruct their right of way. They are also claiming it is for the benefit of their property and visitors to it for turning, even though there is a clause in their TP1 excluding Section 62 of the Property Law Act.

Can an earlier conveyance which grants a ROW and defines an area for turning/parking be superceded by a later ROW, does this not amount to a derogation of grant (s)?
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Re: Conflicting interests PROW

Postby stufe35 » Fri Jun 16, 2017 5:49 pm

To get answers with less guess work involved it would benefit you to post the diagram and also the wording of your deeds (particularly in relation to unit 3) and those of user 3.

At first guess from what you have put I'd say they have no right to enter the yellow area....but devil is in the detail and I'm no expert. The experts will be along in due course and they will ask the question I've put at the top.
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Re: Conflicting interests PROW

Postby melbatoast » Fri Jun 16, 2017 6:28 pm

Thanks for quick reply.

I guessed a response would go something like that, as I understand from reading other posts, I need to make a couple more posts before I can upload any docs.

I will post other info though that should get me there.
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Re: Conflicting interests PROW

Postby melbatoast » Fri Jun 16, 2017 6:52 pm

User 3's TP1 states: "A right of way at all times and for all purposes connected with the use and enjoyment of the Property and with or without vehicles over and along the Accessway subject to the owners from time to time of the Property contributing a fair and reasonable proportion of the cost of maintaining repairing and resurfacing of the Accessway and subject to causing no obstruction on the Accessway at any time ".

Restrictive covenant; Not to obstruct or permit any obstruction of the Accessway.

My TP1 only refers to user 1 and states under rights reserved for the retained land, the same as above.

The Accessway is defined as the whole of the Accessway but the rights reserved for user 1 are limited to the points between A and B, this is over the narrow section of the Accessway.

No mention of user 2's ROW.
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Re: Conflicting interests PROW

Postby melbatoast » Fri Jun 16, 2017 7:17 pm

Unfortunately, my printer has decided to give up on me which means I am unable to print a document until Tuesday. A shame as I have copies on pdf but, names, places etc are present, so no good.

To add to above post: Restrictive covenants by the transferee: For the benefit of the retained land; not to obstruct or permit any obstruction of the Accessway.

No mention of user 3.
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Re: Conflicting interests PROW

Postby ukmicky » Sat Jun 17, 2017 1:32 am

There is no conflict of interest because the servient owner can only grant that which is in his power to grant .

If there are pre-exiting easements over the servient owners land ,the servient owner is restricted to what s/he can grant because any new grant cannot substantially interfere any pre-existing easements . So if the servient owner granted rights that s/he should not have because the person those rights were granted to cannot fully exercise them due to any pre-existing easements they would need to sue the person who granted those rights to gain some form of redress for their loss.

So all you need to see is what rights were expressly granted first.

Is the parking right an expressly granted right and was it granted first.


If the rights were all granted at the same time and the parking substantially interfered with the general purpose of the right of way ,access . The parking rights would come second to the right to pass and repass.
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Conflicting interests PROW

Postby pilman » Sat Jun 17, 2017 3:35 pm

User 3's TP1 states: "A right of way at all times and for all purposes connected with the use and enjoyment of the Property and with or without vehicles over and along the Accessway subject to the owners from time to time of the Property contributing a fair and reasonable proportion of the cost of maintaining repairing and resurfacing of the Accessway and subject to causing no obstruction on the Accessway at any time "
The easement granted to No. 3 in 2014 seems quite easy to understand once it is realised that there was an earlier easement granted to No.2.
User 2 has a pumping station with pedestrian access from a parking and turning area, defined on the associated map from a deed of conveyance dated 1965, this covers the widest part and end of the Accessway. The vehicular accessway on the Conveyance is defined in brown and ends where the accessway widens and becomes a measured, yellow area for parking and turning;

No.2 has the right to park on the yellow land as well as a right to pass and repass over the land coloured brown which is the Accessway that now allows a vehicle to arrive on the drive of house No.3.

The right to pass and repass over the brown Accessway in order to access that drive on No. 3's property is the only easement that is available to No.3.

The only problem could be a definition as to what comprised the "Accessway" in 2014, if there was no plan used on the TP1 for No. 3 in 2014.

As the current owner of all of this Accessway and the yellow area shown on the 1965 conveyance, you have a copy of the 1965 conveyance and a copy of the 2014 TP1, so you have those deeds as evidence of what can be done on the servient land that you acquired in 2014.
User 1 accesses their property along the narrow stretch (previous owner and vendor of all the properties involved, under one title)
Are you saying that this is the same person who granted rights of way in 1965 and in 2014 and that person still owns No.1?
If it was not made clear to you in 2014 as to what was the extent of the "Accessway" and the separate "parking and turning area" then you may have a claim against that person if the area of servient land was not correctly identified with the various elements remaining unclear from any plan accompanying the TP1.

As for No.3's current comments, you can certainly provide a copy of the 1965 conveyance plan and clarify that the Accessway only extends over the brown coloured area, meaning that No. 3 has no rights over any other part of your land.

Then come to an agreement with No.2 to erect gates to separate the yellow land from the Accessway. You could even try to agree with No.2 that those new gates can be locked, as long as No. 2 is agreeable to having joint use of that land with you.

Your comment that No. 3 claims that parking in this area is obstructing their right of way will need to be taken into account, but if the right of way granted to No. 3 allows him to drive onto the private drive belonging to his property then that claim cannot be justified.
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Re: Conflicting interests PROW

Postby melbatoast » Sat Jun 17, 2017 7:25 pm

Thanks ukmickey and Pilman for your replies.

Ukmickey,

I will post the Conveyance ASAP for your perusal.

As far as my very limited understanding goes; I believe that the right to park and turn is not expressly stated in the Conveyance however, it is defined as 'area required for parking bay and turning' this is the measured area, coloured yellow and is defined on the associated map with the Conveyance. This is where user 2 parks to access the pumping station.

The Conveyance is dated 1965 and user No.3's ROW was granted Dec 2013.

Pilman,

The only problem being; User No 3's granted ROW is across the entire 'Accessway ' and is defined as the area hatched green on both TP1s ( this includes the brown and yellow area defined in the 1965 Conveyance)

The 1965 Conveyance was granted by the owner of the Accessway at that time, the 2013 ROW was granted by the Estate of that owner.

I do think the vendor has attempted to protect himself with an indemnity in the TP1, so no redress there?

When I purchased my property in Feb 2014, i understood there was a ROW granted to user 3 across the Accessway but, before completion, I was only supplied with the 1965 Conveyance and not the TP1 with the Accessway hatched green. So my understanding was that the 1965 Conveyance identified the Accessway and turning/ parking area.

I am not concerned with gating the area to inhibit users visiting any of the properties involved and user No.2 has been historically happy to share, with the owner, the area in which they park.

User 3 has opened up 2 new vehicular accesses off of the yellow area, this is why they are claiming nobody can park in the area.
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Re: Conflicting interests PROW

Postby melbatoast » Sat Jun 17, 2017 7:49 pm

Pilman,

User 3 can and does, on a daily basis, access his land by vehicle over the Accessway at all 3 points.
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Re: Conflicting interests PROW

Postby pilman » Sun Jun 18, 2017 1:18 pm

I do think the vendor has attempted to protect himself with an indemnity in the TP1, so no redress there?
Because the transferor in 2013 was the executor of the Estate of the deceased owner then I am unsure what sort of indemnity can be included that will allow the Executor to derogate from the grant made in 1965 by including the land designated as a parking and turning area as a granted right of way for the benefit of No.3.

Taken on its face value No. 3 has a granted right of way over the land you state was hatched green on the TP1, although the full extent of that land hatched green included a previously designated parking and turning area.

That is what needs to be made clear to the owner of No. 3.
That owner cannot prevent parking on the yellow area identified on the 1965 plan, just because there are now new access point that have been created onto the property at No.3

The owner of No. 3 could possibly have a claim against the Transferor, because no mention of prior rights were provided when the TP1 was executed in 2013, although as owner of the servient land shown coloured brown and yellow on the 1965 plan you are obliged to allow parking because that is a legal burden on the land.

In the same way that No. 3 cannot prevent parking on the "yellow" land, because it was an existing legal burden prior to the TP1 being executed in 2013 when the property at No. 3 was transferred.

In effect the Transferor in 2013 had no legal right to prevent parking under a deed of grant dated from 1965. The granted right of way was one that the Transferor was not legally capable of granting.

The owner of No. 3 has to be made aware of that fact, because that owner has no legal right to prevent parking, despite the new access points created that need No. 3 to now drive over the yellow parking area identified in 1965.

Certain rights are known as overriding legal interests, even if a new owner of land does not have knowledge of such existing rights.
Have a look at the Government web-site where there is a full explanation of how such rights are now dealt with by the Land Registration Act 2002.

https://www.gov.uk/government/publicati ... disclosure
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Re: Conflicting interests PROW

Postby melbatoast » Sun Jun 18, 2017 1:56 pm

Pilman,

Thank you so much for clarifying this for me - I hope you are correct in your analysis.

This is what I believed to be the case from reading lots and lots about easements and overriding interests.

It seems as though clarity was not applied in the Conveyance for user No.3.

Now it's how I go about convincing No 3 about this!
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Re: Conflicting interests PROW

Postby pilman » Mon Jun 19, 2017 10:14 am

Now it's how I go about convincing No 3 about this!
Confirm to No. 3 that there was a conveyance in 1965 by providing a copy with the plan attached.

Point out that this created two legal easements that cannot be interfered with.

One was a right of way over the land coloured brown and the other a right to park and turn on the land coloured yellow.

Then point out that the Transferor of No. 3 in 2013 may not have had the legal power to grant a right of way over the land shown coloured yellow on the 1965 conveyance plan if that would cause derogation from the original grant.

That is why No.3 cannot prevent parking on the yellow land by the owner of No.2, despite the fact that when there is no car being parked there he can access different parts of his own land than was possible in 1965.

The parking easement is the primary easement that is an overriding legal interest over the land identified in the 1965 conveyance, which was transferred to you in 2013.

Whether that will allow you to park on the yellow land when you want to do that is not clear, because when your transfer was completed, both of the other properties had a right to use the yellow servient land in different ways. Only one could park, while the other could pass and repass over that land as long as the other was not using it for parking. You can always use the yellow land for turning purposes because you own that land. What you cannot do is prevent either of the neighbouring properties from using it for the purposes set out in the respective deeds dated 1965 and 2013.

It seems to me that you cannot derogate from either of those easements, although neither you nor the owner of No. 3 can prevent No. 2 from parking whenever he wishes to do so.

That is when No. 3 cannot demand that he be allowed to pass and repass over the yellow land. No.2's easement has priority because it was granted 48 years earlier.
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Re: Conflicting interests PROW

Postby melbatoast » Mon Jun 19, 2017 2:38 pm

Pilman,

Thanks for your reply.

You can probably now see now why the title of my thread is such :-)

So it appears that I am back to my original question; can a right of way at anytime for all purposes be lawfully granted in the Conveyance dated Dec 2013 without derogation of the 1965 Conveyance ?
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Re: Conflicting interests PROW

Postby pilman » Mon Jun 19, 2017 4:35 pm

Probably not, but an expensive court case may not provide the answer in such a definitive way.

That right of way can be granted, although it will always be subject to the prior easement to park on the yellow land, which should probably have been made absolutely clear by the Grantor who showed all the land as "accessway" on the 2013 TP1 plan.

That's what you need to clarify to No.3.

He can't stop No. 2 parking, although he may be able to prevent you from parking on the accessway if he was prepared to start legal proceedings to make such a claim in court.

I suggest that you take a pragmatic view of the matter, because an expensive legal battle may not be sensible.

Even taking legal action against the Trustees who sold your land could also be an uncertain case to take forward.
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Re: Conflicting interests PROW

Postby stufe35 » Mon Jun 19, 2017 4:56 pm

If I have the layout correct in my head, no 3 has to go past his original entrance to enter the yellow land. His original entrance was off the brown land. Why was he ever given this right..he had no reason to enter the yellow land before he put in new entrances ?.

A plan, the plans and the various wordings still may help shed a little more light on this situation.
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