Gate through to private road

Re: Gate through to private road

Postby heegeebeegee » Sat Jul 29, 2017 6:35 pm

Have just been to see number 4 and she has given me permission to put a gate in the hedge opposite her bungalow so the situation is looking much better.

I spoke to the lady I know in the terrace and she maintains that no-one owns the lane although we all know that someone owns it somewhere along the line but who that is i don't seem to be able to find out.

Looking good now I think?
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Re: Gate through to private road

Postby Collaborate » Sat Jul 29, 2017 11:19 pm

Not looking bad, but a permission once granted can always be revoked by whoever owns number 4 for the time being.
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Re: Gate through to private road

Postby heegeebeegee » Sun Jul 30, 2017 5:54 am

Collaborate wrote:Not looking bad, but a permission once granted can always be revoked by whoever owns number 4 for the time being.

So the way to proceed would be to get a deed of easement arranged with no 4? I'm sure they would be agreeable.
There is already a deed of easement in place with the house at the north end of the terrace for a water supply pipe to pass under the boundary wall.
I'm at the conveyancer's in the week so will email them the right question before hand.
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Re: Gate through to private road

Postby Collaborate » Sun Jul 30, 2017 7:44 am

Not an easement. She can't grant you one of those because she doesn't own the lane. It is clear that she has the legal right and duty to maintain the wall (though if not the original owner it can't be enforced against her) - but you could possibly enter in to some sort of deed with her. I wouldn't see how it would be in her interest to bind herself in this way though.

Walk away from it. Find somewhere else if it's a deal breaker.
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Re: Gate through to private road

Postby heegeebeegee » Sun Jul 30, 2017 4:04 pm

Collaborate wrote:Not an easement. She can't grant you one of those because she doesn't own the lane. It is clear that she has the legal right and duty to maintain the wall (though if not the original owner it can't be enforced against her) - but you could possibly enter in to some sort of deed with her. I wouldn't see how it would be in her interest to bind herself in this way though.

Walk away from it. Find somewhere else if it's a deal breaker.


No 4 has no duty as far as the wall in concerned - I don't really have any worry as this lady is in a similar situation to my wife in terms of disability and empathy is why she gave her permission. I was always ready to just put the gate in and deal with the flack from people who don't own the lane but the permission has made my wife much happier about it. I feel quite confident in the situation now but like I say I will speak to the conveyancer.
Thanks to all for your input.
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Re: Gate through to private road

Postby arborlad » Mon Jul 31, 2017 6:24 am

arborlad wrote:
heegeebeegee wrote:
Collaborate wrote:OP - if the owner of no 3 is obliged to maintain the fence on your side of the road they will also have the right to prevent you from removing it to insert a gate.

If the others on that lane only have a ROW and the owner either cannot be found or isn't interested you might get away with it then you might get away with it, but there is always a risk. If access to the lane is crucial to your purchase, walk away.


No 3 only has responsibility for the fence opposite his property, not for all of it so there is a stretch of hedge opposite no 4 that has no fence in front of it. I'm off to see the owner of one of the terrace at the north end who I know to see if she knows who the owner of the lane is. She has been there longer than anyone else as far as I know.




Can you amend your drawing to show where #3 fence is please.




.........and also ask the vendor why they haven't already got a gate there?
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Re: Gate through to private road

Postby pilman » Mon Jul 31, 2017 6:20 pm

TOGETHER also with the rights for the purchaser his heirs and assigns the owners and occupiers of the messuage intended to be erected on the premises hereby assured at all times hereafter by day and by night and for all purposes with or without horses or other animals carts carriages or waggons laden or unladen to go and return along and over the private road or way on the west side of the hereditaments hereby assured leading from the said messuage so intended to be erected as aforesaid and from the said hereditaments to the public highway called Beach Road or Lower High Street
from the wording used which mention "with or without horses or other animals carts carriages or waggons" it would seem that the "new house" being built has now been there for a very long time.

The right of way is described as a "private road" so there would be two possible explanations.
Either the builder who was going to erect those new houses owned the land over which the private road was set out, or the land that had been bought to allow development of three houses had a prior existing right of way.

Many years ago private roads were set out during the process known as Inclosure, which is when common fields shared by multiple owners were no longer considered a sensible form of agriculture. A private Inclosure Act was passed by Parliament appointing Commissioners to divide up the land in a Parish by allotting land that reflected the total land-holdings of individuals that had been spread across the common open fields in that parish.

That was the first time that large farms came into existence, so there had to be private roads as well as public roads set out by the Inclosure Commissioners to allow access to all the new parcels of land that were awarded as part of the legal process of Inclosure.

Sometimes it is worth finding out if a Parish was subject to an Inclosure Act when researching ownership of old private roads.
If the land you intend buying was accessed using a private road that was awarded by an Inclosure Award, then obviously that means there is a right of way for your potential property.

If this private road was part of land bought by the builder who erected the terrace of three houses, then there is good chance that when the builder had completed the sale of all three houses he just walked away with no further thoughts about who was going to use the road after he had banked the profit he would have made selling three houses, even if the road had been part of the cost of the land he had developed. That was also quite a common occurrence, which is why so many private road remain unregistered.
There has been no dealings with those roads since registration became compulsory probably because the original owner considered the land worthless and didn't bother passing on such land as part of an inheritance when he died.

That is why you have already been told that only the legal owner of the private road can stop you using it.
People who were granted a right of way over that road own an easement, which is a legal interest over land.
Only the person with ownership of the Legal Estate in land that comprises the soil of the road can begin legal action claiming trespass.

Any local neighbour claiming that he or she can prevent such use of the road is just bluffing.
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Re: Gate through to private road

Postby heegeebeegee » Mon Jul 31, 2017 10:13 pm

pilman - Thanks very much,that's the most interesting thing I've read here so far and well worth mentioning to the conveyancer, who has also mentioned the Prescription Act 1832 as possibly relevant.
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Re: Gate through to private road

Postby pilman » Tue Aug 01, 2017 12:19 am

Prescription is when someone owning property has over a period in excess of 20 years created an easement such as a right of way by using another persons land openly, without force and without permission.

That requires evidence of such use for over 20 years, so unless the current owner of the property you want to buy can provide such evidence it seems unlikely that a prescriptive right of way applies to this property.

The fact that there is no gate that provides access to the private road would imply that the main access to this property is from the other direction, because you mentioned it being in "a close". That does not suggest that a claim of a prescriptive easement is possible if no gate currently exists in a hedge boundary feature.
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Re: Gate through to private road

Postby SwitchRich » Tue Aug 01, 2017 4:07 pm

pilman! You and me need to go for a beer sometime! :)
Love reading your posts :D
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Re: Gate through to private road

Postby heegeebeegee » Wed Aug 02, 2017 6:35 am

OK so the fence that runs along the west side of the lane that is mentioned in 3's deed is no longer there - the covenant is from 1907 - the estate the house I want to buy dates from 1974 and there is clearly a boundary wall that is mine that was built in 1974 with a fence and hedge built in to it. Does that mean the covenant is discharged so 3 is no longer responsible for the fence? The fence runs from the gate by the field at the north end of the lane to nearly the end of my hedge (just stopping where I want to put my gate happily enough).

Arborlad - the orange mark where I want to put my gate marks the end of the fence.

I can't ask the vendor why they didn't put a gate in as he is dead
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Re: Gate through to private road

Postby arborlad » Wed Aug 02, 2017 9:21 am

heegeebeegee wrote:OK so the fence that runs along the west side of the lane that is mentioned in 3's deed is no longer there - the covenant is from 1907 - the estate the house I want to buy dates from 1974 and there is clearly a boundary wall that is mine that was built in 1974 with a fence and hedge built in to it. Does that mean the covenant is discharged so 3 is no longer responsible for the fence? The fence runs from the gate by the field at the north end of the lane to nearly the end of my hedge (just stopping where I want to put my gate happily enough).

Arborlad - the orange mark where I want to put my gate marks the end of the fence.

I can't ask the vendor why they didn't put a gate in as he is dead




The law presumes you will fence to the fullest extent of your land, if #3 or his predecessor has acted correctly, either in 1907, 1974 or more recently - they own that section of lane.
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Re: Gate through to private road

Postby heegeebeegee » Wed Aug 02, 2017 5:10 pm

arborlad wrote:
heegeebeegee wrote:OK so the fence that runs along the west side of the lane that is mentioned in 3's deed is no longer there - the covenant is from 1907 - the estate the house I want to buy dates from 1974 and there is clearly a boundary wall that is mine that was built in 1974 with a fence and hedge built in to it. Does that mean the covenant is discharged so 3 is no longer responsible for the fence? The fence runs from the gate by the field at the north end of the lane to nearly the end of my hedge (just stopping where I want to put my gate happily enough).

Arborlad - the orange mark where I want to put my gate marks the end of the fence.

I can't ask the vendor why they didn't put a gate in as he is dead




The law presumes you will fence to the fullest extent of your land, if #3 or his predecessor has acted correctly, either in 1907, 1974 or more recently - they own that section of lane.


Do you mean lane or fence?

In the deeds for the house I want to buy it says

"4. To forthwith erect and forever thereafter maintain fences of the type referred to in Clause 6 hereof along the boundaries indicated with an inwards "T"mark on the said plan"

The marks T are long the south and east sides of the property I want to buy - shaded in green on the picture
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Re: Gate through to private road

Postby arborlad » Thu Aug 03, 2017 9:12 am

heegeebeegee wrote:
arborlad wrote:
heegeebeegee wrote:OK so the fence that runs along the west side of the lane that is mentioned in 3's deed is no longer there - the covenant is from 1907 - the estate the house I want to buy dates from 1974 and there is clearly a boundary wall that is mine that was built in 1974 with a fence and hedge built in to it. Does that mean the covenant is discharged so 3 is no longer responsible for the fence? The fence runs from the gate by the field at the north end of the lane to nearly the end of my hedge (just stopping where I want to put my gate happily enough).

Arborlad - the orange mark where I want to put my gate marks the end of the fence.

I can't ask the vendor why they didn't put a gate in as he is dead




The law presumes you will fence to the fullest extent of your land, if #3 or his predecessor has acted correctly, either in 1907, 1974 or more recently - they own that section of lane.


Do you mean lane or fence?

In the deeds for the house I want to buy it says

"4. To forthwith erect and forever thereafter maintain fences of the type referred to in Clause 6 hereof along the boundaries indicated with an inwards "T"mark on the said plan"

The marks T are long the south and east sides of the property I want to buy - shaded in green on the picture




I did mean lane but that would also include fence if my understanding is correct.

I'm trying to establish how this came about and what it might mean for you: I spoke to the resident of 3 who stated "of course, there is no access through from there to here" so I left it at that and didn't pursue the matter with him any further. His online register deeds say that he has a covenant to keep the fence west of his property on my side of the lane in good order. The fence to the west of his property forms part but not all of the boundary of the property I want to buy. So I wouldn't put the gate there.

If he owns the fence he owns the land it occupies but it's irrational to conclude that that is all he owns, he also has an easement to use the lane which would preclude his ownership of the lane.
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Re: Gate through to private road

Postby heegeebeegee » Thu Aug 03, 2017 9:51 pm

All,

Been to see conveyancer today who says the fence is mine, just go through the fence to the lane and put up a gate.

So, that's that.

Thanks to all for the input, I've learned a lot here and it's inspired me to research which can't be bad.

If there are any more developments then I'll let you all know
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