Construction of new dwelling on easement

Construction of new dwelling on easement

Postby leeksausage » Tue Aug 29, 2017 10:14 pm

Hi All,

Been reading for a little while now and thought it was time to jump in and hopefully seek some advice!

I'll try and be as clear and precise as possible, any information I may have missed out, please ask.

We are quickly outgrowing our house but can't quite afford to remain local due to the property prices in the area (South East). A number of reasons we want to remain in the area but mainly it's down are work and schools.

Our plot is relatively large and so we thought the best idea was to build a new dwelling (modest 3 bed detached) on our existing plot, funded by the sale of our current house and a bridge loan from family before we seek a new mortgage on the new dwelling to repay family. Architect instructed, plans drawn, planning applied.

Now we have the issue with an easement on our property we had forgotten about when we purchased the initial house when young and naive.

Attached is our OS map indicating the layout (did my best in photoshop). Red line indicates our boundary. Blue line indicates easement boundary (up to the South side of our boundary).

Plot.jpg
OS Plot
Plot.jpg (119.55 KiB) Viewed 559 times


A - This is our house
B - Neighbour (privately owned)
C - Neighbour (privately owned)
D - Neighbour (council owned)

The easement in our title register reads:

2 The land has the benefit of the following rights granted by but is
subject to the following rights reserved by the Conveyance dated 25
February 1952 referred to in the Charges Register:-

"TOGETHER ALSO with the appurtenances to the property secondly hereby
conveyed appertaining or belonging but not including any easement or
implied easement of light or air over any adjoining or adjacent
property now or formerly belonging to the Vendors EXCEPT AND RESERVING
unto the Vendors in fee simple a right of way over and of constructing
and laying drains sewers water gas and electricity mains under the
passageway coloured blue on the said plan subject as to the said
passageways coloured blue to rights of way thereover and drainage
thereunder in favour of the Vendors and all others entitled or to
become entitled to the like right."

NOTE: The land coloured blue on the Conveyance plan is tinted blue on
the filed plan and the land in this title is the property secondly
conveyed.


My understanding is that the easement has not been utilised by any surrounding property since being placed there 65 years ago. That part of the garden is enclosed in our fencing with established hedges spanning the entire boundary. Utilities look clear going through all the relevant searches we received from our conveyor when we purchased. All surrounding properties within 200m have their own private access to their land (to both front and rear).

Neighbour B - Lived here since 1969 have said hedges have been there since they bought the place in their early 20s. No mention of easement in their title register or title plans. Access to the road to the North, sewage and utilities connects to the North.

Neighbour C - No mention of easement in their title register or title plans. Access to the road to the North, sewage and utilities connects to the North.

Neighbour D - Property not been registered and so unable to check. Access to the road to the West, sewage and utilities connect to the West.

We had a short consultation with a conveyor who said it looked complicated and we would have to seek the services of a barrister to look into it (surely that cant be correct!?). What are our options? How do we go about finding out who the easement serves and how do we get around the issue? The last place we want to be in 3 years time is bankrupt and homeless with 2 kids because someone decided to flag up this restrictive covenant leading to a demolition project.

Many thanks in advance!
leeksausage
 
Posts: 1
Joined: Tue Aug 29, 2017 3:59 pm

Ads are not endorsed by www.gardenlaw.co.uk or the staff thereof and visitors should perform their own due diligence on the product or service offered.
 

Re: Construction of new dwelling on easement

Postby jonahinoz » Sat Sep 02, 2017 8:08 am

Hi,

Speaking from ignorance ... (Why change a winning formula?)

Property B would have to step over the South East point of your garden to access the easement area, or dig up your point to lay pipes. OK, only a few inches wide, but still a trespass.

Property C does have clear access to the easement ... but the easement is for the benefit ALL properties that once belonged to the developer. Does the easement continue East across Southern boundary of Property C to benefit properties on the other side from you. It might be worth looking at his Land Register. If Property C+1 has an easement over Prop.C, does that easement automatically continue across Prop.A?
IF the easement continues East, It would be in everybody's interests to extinguish it. If soil pipes from Props B and C enter Prop. A, they become public sewers, I think, so maybe the Water Authority would like the easement extinguished ... but I doubt they would pay the legal fees. Perhaps if Prop.C hinted that they wanted to lay a soil pipe across Prop.A, and therefore a public sewer, the WA might declare that it was never, ever, going to happen.

It seems unfair that Prop.D has an easement over your land, when they have plenty of their own.

John W
jonahinoz
 
Posts: 1335
Joined: Fri Aug 05, 2011 5:15 pm

Re: Construction of new dwelling on easement

Postby Collaborate » Sat Sep 02, 2017 11:32 pm

jonahinoz wrote:It seems unfair that Prop.D has an easement over your land, when they have plenty of their own.


Fairness is completely irrelevant.

Look at the info you have on the 1952 conveyance, and what that tells you about the property in whose favour the ROW was created. Assuming it is property D, it will be on their unregistered deeds. Even if it isn't, it's on yours and you would be foolish in the extreme to build on it without entering in to a red with the owner of the ROW to have it removed from your title.
Collaborate
 
Posts: 1089
Joined: Mon Feb 23, 2015 10:17 am

Re: Construction of new dwelling on easement

Postby mr sheen » Sun Sep 03, 2017 10:02 am

Consider the worse case scenario in order to determine if you are willing to take a chance on building over a documented easement without addressing the matter first. If you build over it and someone comes along and demands to exercise their rights what would you do? How much would that cost you?

If I had the benefit of the easement I would demand to exercise my rights and if you wanted to divert my easement that would seriously cost you....but hey most other people are reasonable and accommodating of others and especially their neighbours and especially where there is money to be made......aren't they? Check on the forum to see how reasonable people can be under such circumstances...........not!
mr sheen
 
Posts: 2075
Joined: Fri Feb 27, 2009 3:33 pm

Re: Construction of new dwelling on easement

Postby ukmicky » Mon Sep 04, 2017 12:21 am

This could be complicated and I could be wrong but it says to me its a ROW for the purpose of allowing the vendor access to your land to lay services when the estate was being built. Yours may have been built before some of the others and incase they required somewhere to run the services they reserved the right.

The easement is not for all the properties that once belonged to the developer and I doubt it is on anyone else's title other than yours but you need to be sure so you need to speak to the council who own D because it should be on their deeds if the reserved right was granted to D . If its not on anyone's title then as I doubt the developer is still around anymore or own land where they could run services to, I doubt they would be in a position to do anything about your build because if they did utilize the right and grant the benefit to land adjacent to yours and now own no land that could benefit from the easement in the future its become more like an easement in gross (an easement that benefits a person or entity)which legally cant exist.

If the reserved right is not on anyone's title to be safe you may be able to take out indemnity insurance to cover yourself should anyone come along and object to what you have done.


Speak to a proper solicitor.


Hmm Pilman , what do u think.
Advice given is not legally qualified and you are advised to gain a professional opinion
ukmicky
 
Posts: 4513
Joined: Sat Sep 27, 2008 10:13 pm
Location: London

Re: Construction of new dwelling on easement

Postby ukmicky » Mon Sep 04, 2017 1:26 am

The above should have read .


If its not on anyone's title then as I doubt the developer is still around anymore or own land where they could run services to ,I doubt they would be in a position to do anything about your build. if they didn't utilize the right and grant the benefit to land adjacent to yours and now own no land that could benefit from the easement in the future its become more like an easement in gross (an easement that benefits a person or entity)which legally cant exist.
Advice given is not legally qualified and you are advised to gain a professional opinion
ukmicky
 
Posts: 4513
Joined: Sat Sep 27, 2008 10:13 pm
Location: London

Re: Construction of new dwelling on easement

Postby arborlad » Mon Sep 04, 2017 9:12 am

Collaborate wrote:
jonahinoz wrote:It seems unfair that Prop.D has an easement over your land, when they have plenty of their own.


Fairness is completely irrelevant.

Look at the info you have on the 1952 conveyance, and what that tells you about the property in whose favour the ROW was created. Assuming it is property D, it will be on their unregistered deeds. Even if it isn't, it's on yours and you would be foolish in the extreme to build on it without entering in to a red with the owner of the ROW to have it removed from your title.





What is a red please?
arborlad

smile...it confuses people
arborlad
 
Posts: 7347
Joined: Sun Jul 09, 2006 6:30 pm
Location: Hertfordshire

Re: Construction of new dwelling on easement

Postby henners » Mon Sep 04, 2017 3:41 pm

I am not professional - this is not legal advice.
But this looks like an easement reservation.
A reservation reserves a capability to do something at a later date. But the reservation does not put an obligation on the person/persons who benefit to do that something.
The first thing you should ask yourself is: has any of the facilities noted in the reservation been installed, if they have they should, properly, have been registered against the property/properties title/titles that benefit from the rights.
If the reservation has not been invoked - the facilities have not been installed - then you may be lucky.
Reservations are time limited, for the obvious reason that it prevents the owner of the burdened land developing the land over which the reserved easement runs - you can't for example be expected to wait forever for someone to establish a reserved RoW (track/road) over your land.
I can't quite recall what the time limit is, but it is not extensive.
There's a courts legal site that has court cases on it, with half a dozen cases establishing case law on easement reservations - can't think of the name off the top of my head, but someone will bail in with the name.
It's a long time since I thought about any of this stuff.
Good Luck
henners
 
Posts: 137
Joined: Fri Mar 11, 2005 9:06 pm

Ads are not endorsed by www.gardenlaw.co.uk or the staff thereof and visitors should perform their own due diligence on the product or service offered.
 

Return to Rights of Way

Who is online

Users browsing this forum: Bing [Bot] and 4 guests