Shared access/driveway but not included on either deeds

Aziraphale
Posts: 11
Joined: Thu May 07, 2020 1:00 am

Re: Shared access/driveway but not included on either deeds

Post by Aziraphale » Wed May 20, 2020 5:49 pm

pilman wrote:
Tue May 19, 2020 6:26 pm
Having seen many original conveyances used when Council's transferred land under the right to buy legislation, it seemed quite clear that the red land being transferred owned half of the accessway and would have had a right of way over the other half.

The words "VEHICULAR ACCESS" are written over the red line that defined the extent of the land being transferred and that would normally mean that there is no right to park on that access for either of the houses including the one being retained by the council in 1981 unless the width of that access is in excess of 2.4 metres on the blue side.

All existing rights of way had to be conveyed under the terms of the Housing Act 1980 which introduced the right to buy scheme, but in the reservation clause the council would reserve a right of way over the half width being transferred, so that their existing tenant would still be able to use the access to get to the land behind the house, even though the plan does not show a building there. The building behind the house being transferred may have been a garage back in 1981 or just a shed, but the plan used did identify the building.

I have to say that there is very little chance that there is a separate owner of this land tinted blue on the plan other than the Housing Association.
Hi thanks, still waiting bob the actual conveyance as land registry is having trouble to find the copy associated with my register.

Quick question if this conveyance isn’t included within my neighbours register, and also their plan does not include part of the land included within the conveyance, and there is no register or plan for this land, would the conveyance/right of way still stand? Or could the land be acquired legally?

arborlad
Posts: 8600
Joined: Sun Jul 09, 2006 6:30 pm
Location: Hertfordshire

Re: Shared access/driveway but not included on either deeds

Post by arborlad » Thu May 21, 2020 10:40 am

Aziraphale wrote:
Wed May 20, 2020 5:49 pm
pilman wrote:
Tue May 19, 2020 6:26 pm
Having seen many original conveyances used when Council's transferred land under the right to buy legislation, it seemed quite clear that the red land being transferred owned half of the accessway and would have had a right of way over the other half.

The words "VEHICULAR ACCESS" are written over the red line that defined the extent of the land being transferred and that would normally mean that there is no right to park on that access for either of the houses including the one being retained by the council in 1981 unless the width of that access is in excess of 2.4 metres on the blue side.

All existing rights of way had to be conveyed under the terms of the Housing Act 1980 which introduced the right to buy scheme, but in the reservation clause the council would reserve a right of way over the half width being transferred, so that their existing tenant would still be able to use the access to get to the land behind the house, even though the plan does not show a building there. The building behind the house being transferred may have been a garage back in 1981 or just a shed, but the plan used did identify the building.

I have to say that there is very little chance that there is a separate owner of this land tinted blue on the plan other than the Housing Association.
Hi thanks, still waiting bob the actual conveyance as land registry is having trouble to find the copy associated with my register.

Quick question if this conveyance isn’t included within my neighbours register, and also their plan does not include part of the land included within the conveyance, and there is no register or plan for this land, would the conveyance/right of way still stand? Or could the land be acquired legally?



Whatever rights your property legally owned will continue unchanged. The situation you envisage is highly unlikely - it would require an intervening third party owner.
arborlad

smile...it confuses people

pilman
Posts: 3050
Joined: Thu Mar 11, 2010 4:08 pm

Re: Shared access/driveway but not included on either deeds

Post by pilman » Fri May 22, 2020 7:51 pm

On the register of title item 2 in the Property Register refers to the 1981 conveyance beacuse you were granted a right of way. It uses the phrase "the land has the benefit of and is subject to such easements as are granted and reserved in the said deed and the easements and rights specified in paragraph 2 of Schedule 2 of the said act."

Scedule 2 pragraph 3 dealt with rights of way
Rights of way

3 The conveyance or grant shall include—

(a)such provisions (if any) as the tenant may require for the purpose of securing to him rights of way over land not comprised in the dwelling-house, so far as the landlord is capable of granting them, being rights of way that are necessary for the reasonable enjoyment of the dwelling-house ; and

(b)such provisions (if any) as the landlord may require for the purpose of making the dwelling-house subject to rights of way necessary for the reasonable enjoyment of other property, being property in which at the relevant time the landlord has an interest, or to rights of way granted or agreed to be granted before the relevant time by the landlord or by the person then entitled to the reversion on the tenancy.
If the neighbouing house still belongs to the council that is why the tenant has a right of way over your half of the access way.
It was reserved in the 1981 conveyance. so became a burden on the property thereafter.

pilman
Posts: 3050
Joined: Thu Mar 11, 2010 4:08 pm

Re: Shared access/driveway but not included on either deeds

Post by pilman » Sat May 23, 2020 2:56 pm

After posting the previous comment I logged on this afternoon to see if there had been a response from the Original Poster confirming that he/she understood what I had posted.

When I saw no response, I decided to re-read the entire thread to try and understand some of the phrases used in the initial posting, because it seemed likely that the OP was unfamiliar with Land Registry procedure when a property is first registered.

The plan used for each title plan is based on the version of the Ordnance Survey map available at the time of first registration. The red line drawn on each title plan is stated to be the "General Boundary" position and often the red line is drawn over the top of a black line shown on the plan, which is where a physical element such as a fence or hedge was seen by the surveyor who did the survey on behalf of OS.

The plan used with the 1981 conveyance, which would have been drawn by the Council's Surveyor responsible for the right to buy transfers, showed the red line going from the front corner of the garage to a point that appeared to be mid-way between the corners of the two houses and then continuing in a straight line to the front boundary of the property being transferred.

That plan also showed the position of the existing fence that went from the front corner of the house being retained by the council, as well as identifying what may have been an existing fence in the front garden of the house being transferred, which had a "T" mark drawn next to it even though that was not the boundary of the land being transferred with the house.

At some time after 1981 it seems as though the Local District Council decided to transfer all of its existing council houses to a Housing Association after the Government passed legislation allowing this to happen. These were known as Large Scale Voluntary Transfers because there were a large number of properties included.

That was when the Housing Association would have applied to Land Registry to register each transferred property with a separate title number.

If the OS map available to Land Registry at the time of the trasnfers showed the black line where the fence of the house was actually positioned when the survey had been undertaken by OS, which was where it was shown on the Council's plan in 1981, then there is a strong probability that this was where the red line on the title plan was drawn.
That is the probable explanation as to why there appears to be an unregisterd area of land between the two adjacent properties.

The General Boundary rule is mentioned on the Official Plan for each house.
"This title plan shows the general position, not the exact line, of the boundaries."

Any use of the shared access drive is because there is a right of way over the areas shown with the different colours on the 1981 plan.

Now that the next door fence has been moved, part of the area granted as a right of way is no longer available for you to use. That is a trespass over your granted right of way that should be notified to the Housing Association as the property owner, as well as to the current tenants who have erected a fence that is now reducing the width of a granted right of way. That is a substantial obstruction.

The other point referred to in an earlier posting was about parking a car in front of the garage.
Since that would not prevent the neighbour from walking to the back garden it would not seem to be a substantial obstruction to the reserved right of way, which may not have been for a vehicular access in 1981.
It was most probably a pedestrian access, which is how the neighbouring tenant would have gone to the back garden when there was no parking space set out behind the house in 1981.

The wording used when the right of way was reserved in 1981 needs to be looked at as soon as the copy conveyance is received from Land Registry.

Did it specify that vehicular or pedestrian access was reserved?

Aziraphale
Posts: 11
Joined: Thu May 07, 2020 1:00 am

Re: Shared access/driveway but not included on either deeds

Post by Aziraphale » Sat May 23, 2020 6:31 pm

pilman wrote:
Sat May 23, 2020 2:56 pm
After posting the previous comment I logged on this afternoon to see if there had been a response from the Original Poster confirming that he/she understood what I had posted.

When I saw no response, I decided to re-read the entire thread to try and understand some of the phrases used in the initial posting, because it seemed likely that the OP was unfamiliar with Land Registry procedure when a property is first registered.

The plan used for each title plan is based on the version of the Ordnance Survey map available at the time of first registration. The red line drawn on each title plan is stated to be the "General Boundary" position and often the red line is drawn over the top of a black line shown on the plan, which is where a physical element such as a fence or hedge was seen by the surveyor who did the survey on behalf of OS.

The plan used with the 1981 conveyance, which would have been drawn by the Council's Surveyor responsible for the right to buy transfers, showed the red line going from the front corner of the garage to a point that appeared to be mid-way between the corners of the two houses and then continuing in a straight line to the front boundary of the property being transferred.

That plan also showed the position of the existing fence that went from the front corner of the house being retained by the council, as well as identifying what may have been an existing fence in the front garden of the house being transferred, which had a "T" mark drawn next to it even though that was not the boundary of the land being transferred with the house.

At some time after 1981 it seems as though the Local District Council decided to transfer all of its existing council houses to a Housing Association after the Government passed legislation allowing this to happen. These were known as Large Scale Voluntary Transfers because there were a large number of properties included.

That was when the Housing Association would have applied to Land Registry to register each transferred property with a separate title number.

If the OS map available to Land Registry at the time of the trasnfers showed the black line where the fence of the house was actually positioned when the survey had been undertaken by OS, which was where it was shown on the Council's plan in 1981, then there is a strong probability that this was where the red line on the title plan was drawn.
That is the probable explanation as to why there appears to be an unregisterd area of land between the two adjacent properties.

The General Boundary rule is mentioned on the Official Plan for each house.
"This title plan shows the general position, not the exact line, of the boundaries."

Any use of the shared access drive is because there is a right of way over the areas shown with the different colours on the 1981 plan.

Now that the next door fence has been moved, part of the area granted as a right of way is no longer available for you to use. That is a trespass over your granted right of way that should be notified to the Housing Association as the property owner, as well as to the current tenants who have erected a fence that is now reducing the width of a granted right of way. That is a substantial obstruction.

The other point referred to in an earlier posting was about parking a car in front of the garage.
Since that would not prevent the neighbour from walking to the back garden it would not seem to be a substantial obstruction to the reserved right of way, which may not have been for a vehicular access in 1981.
It was most probably a pedestrian access, which is how the neighbouring tenant would have gone to the back garden when there was no parking space set out behind the house in 1981.

The wording used when the right of way was reserved in 1981 needs to be looked at as soon as the copy conveyance is received from Land Registry.

Did it specify that vehicular or pedestrian access was reserved?
Hi still waiting on land registry to find the exact document, the plan I have was provided by the housing association and mentions vehicular access but I have had nothing else mentioning this. My neighbours deeds don’t mention vehicular access only right of way.

I’m residing myself to the fact I may not win this however your point saying the fence impedes and encroaches on the conveyance and will need to be moved is good as this is my view and I have already brought this to the housing associations attention but they are slow in doing anything about it.

I’m also more confident that I should be able to park in front of my garage if not impeding their access as it’s past the pinch point.

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