Conflicting interests PROW

Re: Conflicting interests PROW

Postby arborlad » Wed Jun 21, 2017 8:24 am

arborlad wrote:Are there any verges or land that isn't surfaced alongside this track?




.................additionally, what separates your land from #3, hedge, wall, fence etc., and who owns them?
arborlad

smile...it confuses people
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Re: Conflicting interests PROW

Postby melbatoast » Wed Jun 21, 2017 8:52 am

arborlad wrote:
arborlad wrote:Are there any verges or land that isn't surfaced alongside this track?




.................additionally, what separates your land from #3, hedge, wall, fence etc., and who owns them?


Arborlad,

There was a mature hedge that No.3 removed (within their boundary) then after about 2 years a new fence was erected by No. 3 along the boundary where they have removed the fence that the Council (owner 2) were covenanted to erect according to the 1965 Conveyance (the fence was removed at the same time as the hedge).No.3 has left the first two accesses open fronted and gated the 3rd access, so their fence starts straight with double gates at the furthest point of the yellow area and then hooks back 20ft around the 2nd access and 3rd original access. There is an approximate distance of 30 ft between the gated access and the accesses which are open fronted.

Answer to who owns them; hedge definitely No.3, fence; not sure ( apart from mention in Conveyance I'm pretty sure it is not determined from the deeds of either property although, I own the land from which the land was conveyed)?
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Re: Conflicting interests PROW

Postby melbatoast » Wed Jun 21, 2017 9:27 am

jdfi wrote:
melbatoast wrote:
jdfi wrote:So block off these two accesses, and let him start a court case if he believes he has entitlement to cross your land.

Why did you let him do them in the first place?


jdfi,

I completely understand if that is how you would go about things but, in the interest of neighbourly relations ( it is just him and me), I am trying to establish the lawful , not forceful outcome.

Have you had time to read Pilman posts?


Yes. Mr Pilman is the demi-god of this forum. Everyone is in awe of what he posts, and he is invariably correct.

As I see it you can do one of three things:

-do nothing and acquiesce to this (which may cause you future issues with the pumping station)
-block off the illegal accesses to force the issue
-commence a court claim to force the issue.

Anything else and he will see that you are not serious.


jdfi,

Thank you for your reply,

I am no more in awe of Pilman than of other kind contributors to my thread.

I have read as much as is available to me to try to make sense of my situation. I have asked for advice as court proceedings are possibly imminent. In fact my neighbour has had his solicitor write to me expressing that neither I nor user 2 can obstruct his ROW. I have had my solicitor respond in much the same way as the action advised throughout this thread.

I know there are lots of you on here that spend a lot of your time offering advise and I'm grateful for that advise. It is also apparent from reading lots of previous posts that it can be frustrating for helpers to believe that the person involved may not be proactive but, in reality there needs to be balance.

I guess property law is not as black or white as I may have believed.
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Re: Conflicting interests PROW

Postby MacadamB53 » Wed Jun 21, 2017 10:26 am

Hi melbatoast,

to lawfully cross your land he either needs:
1. to own a legal interest in your land - that would ordinarily be evidenced by a deed
2. to have your express permission - which he hasn't
3. to have entered into a contract with you - which he hasn't
4. to have crossed it over a considerable period of time as if he had a right to do so without you stopping him - which he hasn't, yet

so, without substantiating his claim that he has a right to cross your land you should deal with this as a trespass and take reasonable steps to prevent it recurring if you want it to stop, or else consider one of the options 1-3.

Kind regards, Mac
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Re: Conflicting interests PROW

Postby pilman » Wed Jun 21, 2017 11:01 am

1. to own a legal interest in your land - that would ordinarily be evidenced by a deed
That would be the TP1 that was used when the land was transferred to No.3 in 2013.

This thread started because the current landowner of the servient land also had a TP1 form that showed much the same plan as did the slightly earlier one to No.3.

However the servient land-owner also had a copy of a 1965 deed that showed a prior easement over the land identified on both of the TP1 forms used in 2013.

The fact that No. 3 now seems to think that his right of way overrides the previous easements granted that allow parking is what this thread is all about.

I earlier expressed a view that this is not as clear cut as would provide a good reason to begin legal proceedings.

If a solicitor acting for the Original Poster has communicated with a solicitor acting for No.3, with the 1965 deed provided to confirm that a right to park on the yellow land had existed many years prior to No. 3 being granted a right of way over that yellow land, then the decision as to whether to begin legal proceedings is currently in the hands of No.3.

As do many people posting on a thread I express a personal opinion, which in this case would be that I would not want to begin legal proceedings if I was the owner of the servient land.
That land is undoubtedly burdened by easements in favour of various parcels of land set out in a number of deeds. Trying to prove that the easement granted in 2013 by the executors of the previous owner who granted two easements in 1965 is not as clear cut as would indicate that it is a winnable case.

I think that No. 3 has an easement that is subject to the earlier easement.
I also think that the current owner of the servient land is obliged to allow both uses, so any claim by No. 3 that no one can park on the yellow land is not a claim that No. 3 can succeed in, even if he was prepared to seek a legal ruling on that matter.
The fact he may not have been aware that there was a parking easement over the accessway shown on his TP1 is not the fault of the OP, who is bound by the earlier deed, as is the owner of No.3.
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Re: Conflicting interests PROW

Postby melbatoast » Wed Jun 21, 2017 11:03 am

MacadamB53 wrote:Hi melbatoast,

to lawfully cross your land he either needs:
1. to own a legal interest in your land - that would ordinarily be evidenced by a deed
2. to have your express permission - which he hasn't
3. to have entered into a contract with you - which he hasn't
4. to have crossed it over a considerable period of time as if he had a right to do so without you stopping him - which he hasn't, yet

so, without substantiating his claim that he has a right to cross your land you should deal with this as a trespass and take reasonable steps to prevent it recurring if you want it to stop, or else consider one of the options 1-3.

Kind regards, Mac


Mac,

Thanks for your reply.

As posted before, he does have on his TP1 a granted ROW over the Accessway hatched green on the attached plan, but this includes the same area that is coloured brown for vehicular access and yellow for parking / turning from the 1965 Conveyance . So the 1965 Conveyance is an overriding interest? So cannot be superseded? Transferor could not grant what was not available for him to grant? This would be derogation of grant????... confused, are you?
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Re: Conflicting interests PROW

Postby melbatoast » Wed Jun 21, 2017 11:08 am

pilman wrote:
1. to own a legal interest in your land - that would ordinarily be evidenced by a deed
That would be the TP1 that was used when the land was transferred to No.3 in 2013.

This thread started because the current landowner of the servient land also had a TP1 form that showed much the same plan as did the slightly earlier one to No.3.

However the servient land-owner also had a copy of a 1965 deed that showed a prior easement over the land identified on both of the TP1 forms used in 2013.

The fact that No. 3 now seems to think that his right of way overrides the previous easements granted that allow parking is what this thread is all about.

I earlier expressed a view that this is not as clear cut as would provide a good reason to begin legal proceedings.

If a solicitor acting for the Original Poster has communicated with a solicitor acting for No.3, with the 1965 deed provided to confirm that a right to park on the yellow land had existed many years prior to No. 3 being granted a right of way over that yellow land, then the decision as to whether to begin legal proceedings is currently in the hands of No.3.

As do many people posting on a thread I express a personal opinion, which in this case would be that I would not want to begin legal proceedings if I was the owner of the servient land.
That land is undoubtedly burdened by easements in favour of various parcels of land set out in a number of deeds. Trying to prove that the easement granted in 2013 by the executors of the previous owner who granted two easements in 1965 is not as clear cut as would indicate that it is a winnable case.

I think that No. 3 has an easement that is subject to the earlier easement.
I also think that the current owner of the servient land is obliged to allow both uses, so any claim by No. 3 that no one can park on the yellow land is not a claim that No. 3 can succeed in, even if he was prepared to seek a legal ruling on that matter.
The fact he may not have been aware that there was a parking easement over the accessway shown on his TP1 is not the fault of the OP, who is bound by the earlier deed, as is the owner of No.3.


Thanks for your clarification, Pilman.

I completely understand your previous post and that this is your opinion, and that it is helpful under the circumstances. :)
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Re: Conflicting interests PROW

Postby melbatoast » Wed Jun 21, 2017 5:02 pm

I have heard from my insurers today that they will defend me in respect of my neighbours claim. They may also give me 'freedom of choice' on who I have represent me. Just got find an experienced ROW solicitor now..... :wink:
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Re: Conflicting interests PROW

Postby melbatoast » Thu Jun 22, 2017 10:30 am

Finally able to upload the Conveyance.
IMG_0637.JPG
First page of Conveyance
IMG_0637.JPG (105.73 KiB) Viewed 453 times
IMG_0636.JPG
Map from Conveyance
IMG_0636.JPG (93.08 KiB) Viewed 453 times
IMG_0635.JPG
Second page of Conveyance
IMG_0635.JPG (104.28 KiB) Viewed 453 times
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Re: Conflicting interests PROW

Postby melbatoast » Thu Jun 22, 2017 10:37 am

Where there is the hatched box on the northern boundary of the brown area, this is what used to be garages for each of the properties, these then became parking/ access areas for each of the properties.
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Re: Conflicting interests PROW

Postby pilman » Thu Jun 22, 2017 11:41 am

That conveyance provides a different interpretation regarding what had been posted earlier.

The farmer sold a small area of land measuring .02 acres to allow a pumping station to be located next to a green lane. There was to be a right to pass and repass at all times and for all purposes over the strip of land coloured brown and yellow on the said plan.

The plan identified the various plots that were coloured pink, brown and yellow and on the plan the description of the yellow land used words that were not mentioned in the text of the conveyance.
"Area within OS 87 required for turning/parking bay 0.03 acres"

The OS parcel 87 was identified as the land immediately north of the yellow area, which must have also included that yellow area, because of the description written on that plan.

My analysis of that plan would be that prior to the conveyance of the pumping station land there existed a track that led to OS parcel 87. As part of this deal with the council the farmer included a small area of land within parcel 87 that would become an extra length of track that would provide access to the green lane through the gate that was to be erected in the hedge that defined the western boundary of the yellow land.
By passing through this gate that would then allow access via the green land to the pumping station once it was installed.

The Council also covenanted to erect a fence on the north side of the yellow land in parcel 87, but had to insert two gates in that fence to allow access to each of the cottages that were located on parcel 87 in 1965.

There was also a covenant "To level off the the surface and provide and lay hardcore on the land coloured yellow to a standard as least as good as that of the existing turning space"

Those emboldened words imply that vehicles that used to drive along the original track to get to either of the two cottages, used the final part of that original track as a turning space in order to drive back towards the public highway in a forward direction.

After the yellow land was resurfaced, that would then become the end of the new length of right of way being set out after the sale of land to the council, so that it was thereafter the most convenient space for the owners of the two cottages and the employees of the council to turn round in.

As a matter of common sense, if a car belonging to a council employee was parked on the yellow land so that this employee could then walk towards the pumping station, this would be very occasional use of that yellow land, which would not be much of an obstruction to the occupiers of the two farm cottages who could still drive up the full length of the original part of the track to turn round as they did before the yellow land was added to the right of way.
Each occupier could then walk through either of the wicker gates set in the fence that separated the section of new track from the individual cottages.

Jump forward to 2013 and the person transferring ownership of the cottages granted a right of way over all the track that existed by that date to one of the cottages located on parcel 87 and then transferred the whole of the track to the person buying the other cottage located on parcel 87.

The word "parking" had no legal meaning when added to the plan used in 1965.

The 1965 plan certainly doesn't provide evidence that the owner of No.3 has to accept that there is a right for anyone to permanently park on the land that was coloured yellow on the 1965 conveyance after the owner of No.3 had taken full advantage of the right of way he was granted in 2013 to alter his property to provide more than one access from the granted right of way.

On those facts I am now of the opinion that the owner of No. 3 has every right to demand that no one obstructs the right of way by permanently parking a vehicle on any part it that will prevent him being able to drive onto his property from the right of way at any point he chooses.
I have heard from my insurers today that they will defend me in respect of my neighbours claim.

What I am now unclear about is how a legal insurer came to the conclusion that this was a case worth defending.
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Re: Conflicting interests PROW

Postby melbatoast » Thu Jun 22, 2017 12:40 pm

pilman wrote:That conveyance provides a different interpretation regarding what had been posted earlier.

The farmer sold a small area of land measuring .02 acres to allow a pumping station to be located next to a green lane. There was to be a right to pass and repass at all times and for all purposes over the strip of land coloured brown and yellow on the said plan.

The plan identified the various plots that were coloured pink, brown and yellow and on the plan the description of the yellow land used words that were not mentioned in the text of the conveyance.
"Area within OS 87 required for turning/parking bay 0.03 acres"

The OS parcel 87 was identified as the land immediately north of the yellow area, which must have also included that yellow area, because of the description written on that plan.

My analysis of that plan would be that prior to the conveyance of the pumping station land there existed a track that led to OS parcel 87. As part of this deal with the council the farmer included a small area of land within parcel 87 that would become an extra length of track that would provide access to the green lane through the gate that was to be erected in the hedge that defined the western boundary of the yellow land.
By passing through this gate that would then allow access via the green land to the pumping station once it was installed.

The Council also covenanted to erect a fence on the north side of the yellow land in parcel 87, but had to insert two gates in that fence to allow access to each of the cottages that were located on parcel 87 in 1965.

There was also a covenant "To level off the the surface and provide and lay hardcore on the land coloured yellow to a standard as least as good as that of the existing turning space"

Those emboldened words imply that vehicles that used to drive along the original track to get to either of the two cottages, used the final part of that original track as a turning space in order to drive back towards the public highway in a forward direction.

After the yellow land was resurfaced, that would then become the end of the new length of right of way being set out after the sale of land to the council, so that it was thereafter the most convenient space for the owners of the two cottages and the employees of the council to turn round in.

As a matter of common sense, if a car belonging to a council employee was parked on the yellow land so that this employee could then walk towards the pumping station, this would be very occasional use of that yellow land, which would not be much of an obstruction to the occupiers of the two farm cottages who could still drive up the full length of the original part of the track to turn round as they did before the yellow land was added to the right of way.
Each occupier could then walk through either of the wicker gates set in the fence that separated the section of new track from the individual cottages.

Jump forward to 2013 and the person transferring ownership of the cottages granted a right of way over all the track that existed by that date to one of the cottages located on parcel 87 and then transferred the whole of the track to the person buying the other cottage located on parcel 87.

The word "parking" had no legal meaning when added to the plan used in 1965.

The 1965 plan certainly doesn't provide evidence that the owner of No.3 has to accept that there is a right for anyone to permanently park on the land that was coloured yellow on the 1965 conveyance after the owner of No.3 had taken full advantage of the right of way he was granted in 2013 to alter his property to provide more than one access from the granted right of way.

On those facts I am now of the opinion that the owner of No. 3 has every right to demand that no one obstructs the right of way by permanently parking a vehicle on any part it that will prevent him being able to drive onto his property from the right of way at any point he chooses.
I have heard from my insurers today that they will defend me in respect of my neighbours claim.

What I am now unclear about is how a legal insurer came to the conclusion that this was a case worth defending.


Pilman,

Thank you once again for taking the time to explain your interpretation so concisely.

As stated in my earlier response to ukmickey, I have very limited knowledge in this area and that it was not expressly stated about the Parking in the Conveyance. I had wished to post the Conveyance earlier, for clarity, but was unable to do so.

My insurers are defending me on the basis of all the information I have provided them, including the form which states about any other information relating to the sale of the Property ( not sure what its correct name is, my solicitor has the original), where the vendor suggests further parking in the yellow area. Also based on the fact that No.3 can and does use all 3 accesses daily and could also exercise that use at any point across their boundary. They must be 51% confident, from what I understand?
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Re: Conflicting interests PROW

Postby pilman » Thu Jun 22, 2017 3:10 pm

On those facts I am now of the opinion that the owner of No. 3 has every right to demand that no one obstructs the right of way by permanently parking a vehicle on any part it that will prevent him being able to drive onto his property from the right of way at any point he chooses.
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.
On reflection my earlier quote did not reflect the fact that a legal argument can be made that use of the full 9 metres width of this privately owned road is not necessary at all times in order to provide vehicular access to a private property. The fact that the initial width of the track is only 2.5 metres in width would also be relevant.

If an insurer is prepared to argue that point for the OP then that will leave an uncertain situation until court proceedings have been completed with a final decision made by a judge.

In order to drive onto his land No.3 has erected gates on his boundary next to where the track is 9 metres wide.
It is now known that the 9 metres wide section was added to the original track that had a maximum width of 4.5 metres in 1965.

What the owner of No. 3 will need to prove in any court case is that a vehicle parked on the track will be a "substantial obstruction" that prevents use of the granted right of way.

That is probably not going to be easy.

A standard car is able to drive into a garage that has a door with an opening width of 2.1 metres.
I know that because I have two such doors on my garage, and that was also the standard width of garage doors installed when I was developing new houses.

What also happens in court cases relating to rights of way and claims of a substantial obstruction, is what was the intention of the parties when rights of way were granted.

The farmer sold land that was to allow a pumping station to be installed for the benefit of the community, as well as for the benefit of the farmer who had inserted a clause into the 1965 conveyance that his cottages were to be connected to any new sewer system created by the Council.

That it was his intention that vehicles that needed to drive along the right of way to access the pumping station land were to be allowed to park as near as was possible, can be established because of the words written on the plan.

If the current owner of this servient land did park on the end part of the track, as long as a clear path to the new gates was always available to the anyone driving to No.3 that would probably not be considered as a substantial obstruction of the granted right of way.

An owner can use his own land in whatever way he wants, as long as that use does not cause a "substantial obstruction" to a granted right of way.

I have often posted on Garden Law that sometimes a pragmatic option can also be considered rather than letting matters be decided by the legal process with all the costs that can entail, unless of course you are completely covered by legal insurance cover.

I would be considering all pragmatic alternatives if I owned this right of way.

With a distance of 30 feet (9.14 metres) between the gated access and the next open access onto No. 3's property that would allow two parking spaces to be marked-out parallel to No. 3's boundary.
Even if parking spaces with a 3 metres width were marked out, that would leave a width of 6 metres to drive through. If a further two parking spaces were marked out parallel to the other side of the track, that would still leave a 3 metres gap to drive through to allow a nice swing through the gates on the boundary of No. 3's land.
That would cost the total price of one spray can of marking paint to mark out these parking spaces that would not be be a substantial obstruction that will prevent a car passing and re-passing over the private road to gain access to and from the dominant land.

I would also consider what land existed adjacent to mine.
The yellow area is a dead end for vehicles as it leads to a restricted byway through a narrow gate
The 1965 plan shows that the new yellow part of the track stops at the boundary with this restricted byway, which the OP knows is a public highway.

Removing the fence that separates the private track from the public track is certainly an option that would provide additional parking spaces even if part of a car was on private land and part on public land.

Should this be done, as well as creating the parking spaces suggested above, then there ought to be sufficient spaces to suit most normal requirements of a family, especially if parking already exists on the front gardens of both of the cottages.

I trust that melbatoast is now more familiar with how matters regarding rights of way have to be considered.
The phrase "substantial obstruction" is the legal standard when deciding such matters as are claimed by the dominant land owner, who seems to think he is allowed total and exclusive access over the 9 metres width of private road owned by melbatoast.
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Re: Conflicting interests PROW

Postby melbatoast » Thu Jun 22, 2017 4:30 pm

Pilman,

Thank you for the time you have spent on this thread. I have certainly gained more insight because of your interpretation of my situation.

Just one point though. I thought that a restricted byway means I can ride my horse or bike, but not drive a vehicle? Therefore, the suggestion you make to extend the length of the Accessway would not be possible. To be honest it really isn't needed, we do both have large front gardens with driveways.
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Re: Conflicting interests PROW

Postby MacadamB53 » Thu Jun 22, 2017 4:46 pm

Hi melbatoast,

I thought that a restricted byway means I can ride my horse or bike, but not drive a vehicle?

the Natural Environment and Rural Communities Act 2006 says you thought right.

Kind regards, Mac
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