ROW/Garden Encroachment

ROW/Garden Encroachment

Postby MillyMoo » Sat Sep 16, 2017 9:29 am

Hi everyone,
hoping for some advice. We have a terraced house which we rent out. There are just two houses side by side, with a passage at the front leading to the public lane. Our house is the end house. The tenants recently alerted us that the neighbour next door had knocked down their wall, gravelled over their front garden including the passage and put up a gate. So, to get to the front door of our house you now have to effectively walk through their garden. Looking at the title plan of our house, and theirs there does seem to be a discrepancy. Their title plan seems to show the red line stopping before the passageway. Ours shows the red covering our part of the passageway and shows a right of way in front of theirs. In our register, we have the following wording (our house is no. 4, neighbour is no. 3):

"That the portion of the passageway coloured yellow on the said plan forming part of the said adjoining property no. 3, aforesaid shall be included in the grant of rights of way thereover subject to the Purchaser and his successors in title contributing a fair proportion of part of the expense of keeping the same in repair."
NOTE: The passageway coloured yellow referred to above is shown tinted brown on the filed plan.

On their register the following is written:

The land has the benefit of the following rights granted by but is subject to the following exceptions and reservations contained in a Conveyance of the land in this title dated 19 May 1972 made with 1) A J and 2) A S: -
"Together with all rights of way water drainage and other easements now or heretofore enjoyed by the property hereby conveyed over through or under the adjoining properties now or formerly owned by the Vendor EXCEPT and RESERVING unto the Vendor the owner or owners for the time being of the adjoining or neighbouring properties now or formerly owned by the Vendor or similar rights of way water drainage and otherwise now or formerly enjoyed by the Vendor or other adjoining or adjacent property over the property hereby conveyed"

Very confused - do we own the passageway and they have a right of way? or do they own it, and we have right of way although as mentioned, on their actual plan, the red line does not extend over the passageway, but ours does in front of our property, and in front of theirs it is tinted brown.

any advice much appreciated. We will hope to go and see them and resolve this amicably but can see a struggle seeing as they have carried out the work already!!!

thanks
MillyMoo
 
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Re: ROW/Garden Encroachment

Postby MillyMoo » Mon Sep 18, 2017 12:39 pm

Update - I spoke to our solicitor this morning, and this land turns out to be unregistered land. Not sure if anyone can advise on how to go about owning this land? we just want to re-instate the passageway. We don't own the passage but neither does the neighbour that has taken it over...
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Re: ROW/Garden Encroachment

Postby Collaborate » Mon Sep 18, 2017 2:38 pm

If you can prove that you have the benefit of an express ROW over the land then you can assert your rights through the courts if necessary. Check your home insurance for legal cover.

The action you would threaten (and take if necessary) is damages for and an injunction to prevent interference with your ROW.
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Re: ROW/Garden Encroachment

Postby MillyMoo » Mon Sep 18, 2017 3:17 pm

Thanks Collaborate. That is a very good point. I keep thinking they must own the land and so were able to gate it, but as they don't own it, then that is a very helpful point.

They have also blocked off the rear access but we do at least own that, so can enforce that.

So would you say we can claim adverse possession of this unregistered land? Or is it even necessary in fact? Until they knocked down their wall, they didn't need to enter the passageway, just needed to turn into it to open their gate. The solicitor also said that as the walls dividing our houses are party walls, they should not have taken it down without serving appropriate notices under the Party Wall Act.

thanks again!
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Re: ROW/Garden Encroachment

Postby MacadamB53 » Mon Sep 18, 2017 3:41 pm

MillyMoo wrote:Thanks Collaborate. That is a very good point. I keep thinking they must own the land and so were able to gate it, but as they don't own it, then that is a very helpful point.

They have also blocked off the rear access but we do at least own that, so can enforce that.

So would you say we can claim adverse possession of this unregistered land? Or is it even necessary in fact? Until they knocked down their wall, they didn't need to enter the passageway, just needed to turn into it to open their gate. The solicitor also said that as the walls dividing our houses are party walls, they should not have taken it down without serving appropriate notices under the Party Wall Act.

thanks again!
unless you've been in sole possession you're going to struggle with such a claim...
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Re: ROW/Garden Encroachment

Postby MillyMoo » Mon Sep 18, 2017 4:24 pm

Thanks Macadam. Our solicitor points out that although we did have exclusive use as it only leads to our house and nowhere else, it is already too late as the neighbour has knocked down the wall and taken it over.... so yes, even though they had no right to do this, we can now no longer demonstrate exclusive use :x However, Collaborate raised a very good point about obstruction of right of way (as they don't own the land, they can't rightfully put up a gate). We shall try to have a conversation without creating a dispute but seeing as they have already knocked down the wall, I can see a problem ahead.
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Re: ROW/Garden Encroachment

Postby SwitchRich » Mon Sep 18, 2017 9:11 pm

Do keep the forum updated! You'll get some great help here :)
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Re: ROW/Garden Encroachment

Postby MacadamB53 » Mon Sep 18, 2017 10:54 pm

MillyMoo wrote:Thanks Macadam. Our solicitor points out that although we did have exclusive use as it only leads to our house and nowhere else, it is already too late as the neighbour has knocked down the wall and taken it over.... so yes, even though they had no right to do this, we can now no longer demonstrate exclusive use :x However, Collaborate raised a very good point about obstruction of right of way (as they don't own the land, they can't rightfully put up a gate). We shall try to have a conversation without creating a dispute but seeing as they have already knocked down the wall, I can see a problem ahead.
if your property comes with a ROW over the unregistered strip an AP claim stands close to zero chance of being successful - because your use of the land was by right.
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Re: ROW/Garden Encroachment

Postby MillyMoo » Tue Sep 19, 2017 7:12 am

Yes, that is also a good point. I think the AP tactic has been dismissed as we no longer have exclusive use of the passage since they took it into their garden, and now as you say ROW over the land. We think the obstructing our ROW should hopefully make the neighbours see sense. They can't own this strip of land either, and I'm sure they also don't want a dispute. We are going to see them this week and hope we can have a sensible conversation. They have also blocked off our rear access which is ours so perhaps when they see we are not happy they will be reasonable.

thanks for the advice!
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Re: ROW/Garden Encroachment

Postby MillyMoo » Wed Sep 20, 2017 7:09 pm

Update: We have spoken to another solicitor who is a litigation specialist. We are not going in "guns blazing" (yet) and We are still hoping we can talk sensibly to the neighbours, and hope they have "innocently" done this work and will see reason. However we felt it would be good to have the full picture before approaching them. This solicitor laughed about an injunction - said very costly!! Says we can get the original 1963 Conveyance from the LR and that might shed light on who owns the passageway. It is possible it was an error leaving it out of our neighbours? I personally doubt it. From my research, I understand our ROW was not recorded on their deeds or title as our ROW is on unregistered land. So it is only on ours..... But what do you do with neighbours who have illegally put up a fence on land that is not theirs? I can't believe we may have no course of action. they have also put down very large shingle - not pea shingle - which is annoying the tenants living in the house the most. As mentioned, they have also blocked off the rear passage, but luckily it is very clear that we own that, so can rectify that.

I understand that if the neighbours owned this passageway they could indeed put up a gate, and as long as it wasn't locked, we couldn't do much. But they do not own this land, they have incorporated this passage into their garden, erected an extremely high and very ugly gate and apparently we can't do much? If we accept this, the next step will be locks etc.

I have attached a few pictures....
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Re: ROW/Garden Encroachment

Postby MacadamB53 » Wed Sep 20, 2017 9:32 pm

Hi Millymoo,

But what do you do with neighbours who have illegally put up a fence on land that is not theirs?

be careful with your choice of words - the neighbour may have acted unlawfully, yes, but for it to be illegal they must have committed a criminal offence.

that's not me being pedantic, that's me trying to help.

kind regards, Mac
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Re: ROW/Garden Encroachment

Postby MillyMoo » Wed Sep 20, 2017 10:33 pm

Fair point! I'll take that on board thanks Mac.

Solicitor also mentioned this: [b][b]The chippings arguably could impede your right of way. It potentially is a tripping hazard giving rise to potential liability[/b][/b]... I am just looking for options that we can use to reason with the neighbours. I believe they have acted very unreasonably towards us (and our tenants). I have attached a photo of the back area where they have blocked off our passage with an old brown gate and dumped a load of rubbish. They have blocked this gate so that access is blocked through the red gate to the lane. We're not too worried about this area as this is most definitely within our boundary but shows what they are like. I suppose this is common place all over the country but I've never come across it. It just seems to me that we play by the rules, and some people don't and they can do what they like and we don't seem to be able to do much....
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