shared garage path

Post Reply
hmj
Posts: 2
Joined: Sat Aug 01, 2020 7:58 am

shared garage path

Post by hmj »

Hi there. my garage lies at the end of a block of 3. There is a shared path to all. My question is, none of the other users need to use my section of the path, so can I extend the garage into this redundant area, repositioning the door from the rear to the side (90 degs) adjacent to Garage 2 ?
Clifford Pope
Posts: 470
Joined: Tue Aug 25, 2009 1:18 pm

Re: shared garage path

Post by Clifford Pope »

But then if your garage is extended you would not need to use so much of the space in front of garage number 2 in order to access it, so they could extend theirs too, but not quite so much? :)
charliegolf
Posts: 14
Joined: Fri Jul 24, 2020 5:39 pm
Number of Posts per Page: 100
Number of topics per page: 50

Re: shared garage path

Post by charliegolf »

Have you asked the other two? An agreement is much better than maybe 'going against' what was originally intended in title etc.
hmj
Posts: 2
Joined: Sat Aug 01, 2020 7:58 am

Re: shared garage path

Post by hmj »

Clifford Pope wrote: Sun Aug 02, 2020 10:27 am But then if your garage is extended you would not need to use so much of the space in front of garage number 2 in order to access it, so they could extend theirs too, but not quite so much? :)
Fair point, but I am only talking about a metre or so. such a restriction from garage 2 would be unworkable. equally I would intend to speak to both property owners for their thoughts down the rd. It is interesting to note the red line determining the access indicates I am the freeholder?
ukmicky
Posts: 5150
Joined: Sat Sep 27, 2008 10:13 pm
Number of Posts per Page: 20
Number of topics per page: 20
Location: London

Re: shared garage path

Post by ukmicky »

If the ROW is expressly granted and is shown on a plan they have a ROW over the area even if you feel there is no need for them to go onto it.

You can ask their permission to build on it , however if the Row is expressly granted and no change is made to the grant so the same details remain on their title plans and register the right will only bind the current owners under equity . Equity does not bind future owners.


It’s gotta be done properly I’m afraid with changes to the title registers and plans of the dominant tenements
Any information provided is not legal advice and you are advised to gain a professional opinion
Collaborate
Posts: 2119
Joined: Mon Feb 23, 2015 9:17 am
Number of Posts per Page: 20
Number of topics per page: 20

Re: shared garage path

Post by Collaborate »

ukmicky wrote: Sun Aug 09, 2020 4:35 pm If the ROW is expressly granted and is shown on a plan they have a ROW over the area even if you feel there is no need for them to go onto it.

You can ask their permission to build on it , however if the Row is expressly granted and no change is made to the grant so the same details remain on their title plans and register the right will only bind the current owners under equity . Equity does not bind future owners.


It’s gotta be done properly I’m afraid with changes to the title registers and plans of the dominant tenements
Proprietary estoppel would prevent a neighbour from reneging on an assurance a predecessor in title gave, in reliance on which OP extended their garage.
ukmicky
Posts: 5150
Joined: Sat Sep 27, 2008 10:13 pm
Number of Posts per Page: 20
Number of topics per page: 20
Location: London

Re: shared garage path

Post by ukmicky »

Firstly In law there is no legal right as the charge takes priority ...

Under equity propriety estoppel doesn’t bind future owners as propriety estoppel is only an argument that could be brought before the Equity courts. . It’s only an argument because unlike the law under equity there is no automatic right to anything and there are also many possible remedies and outcomes.

Just for the sake of it in case it comes up, in regards to overriding interests it would be hard to argue it’s an overriding interest If both properties are registered as an easement is a registered deposition and therefore any changes should be recorded on the register under LRA2002 unless there is a very good reason why it could not be.


If an estoppel was established against the dominant owners you then have to work out where priority estoppel lies under the rules of priority . Does priority estoppel overide a charge . In some circumstances it can in others it defiantly can’t . Knowing whether it will in this case Is in the hands of the gods ,it’s a very complicated subject. Very.

What I do know however is under priority of interests a mortgage charge does take priority, so if any of the dominant tenements are mortgaged you can forget about propriety estoppel gazumping it in the list of priorities . Under the law unless the morgage company are party to any agreement no priority estoppel can actually exist and any right will be no more than a private right binding on no one other than those who personally took part in any agreement.
Any information provided is not legal advice and you are advised to gain a professional opinion
Collaborate
Posts: 2119
Joined: Mon Feb 23, 2015 9:17 am
Number of Posts per Page: 20
Number of topics per page: 20

Re: shared garage path

Post by Collaborate »

I fear you do not understsand proprietary estoppel.

Halsbury's Laws says:
Proprietary estoppel developed from common law estoppel by representation, and has been described as follows. The owner of land, A, in some way leads or allows the claimant, B, to believe that he has or can expect some kind of right or interest over A's land (or, more generally, his property). To A's knowledge, B acts to his detriment in that belief. A then refuses B the anticipated right or interest in circumstances that make that refusal unconscionable. In those circumstances, an equity arises in B's favour which gives B the right to go to court and seek relief. The court has a very wide discretion as to how it will give effect to this equity
This is in part wrong, and in part doesn't make sense.
Under equity propriety estoppel doesn’t bind future owners as propriety estoppel is only an argument that could be brought before the Equity courts. . It’s only an argument because unlike the law under equity there is no automatic right to anything and there are also many possible remedies and outcomes.
ukmicky
Posts: 5150
Joined: Sat Sep 27, 2008 10:13 pm
Number of Posts per Page: 20
Number of topics per page: 20
Location: London

Re: shared garage path

Post by ukmicky »

Common law and equity are two separate things . Common law judgements are decided by binding precedents . If the precedent says A is unlawful and you can show A occurred you win. The common law court has no discretion on the matter unless it’s a higher court that wishes to change the rules.

Propriety estoppel is not common law its equity and in the beginning was heard in the court of the Chancery not the court of the Kings bench where common law cases were heard. They are a separate form of justice that were brought together in the 1870s allowing the same courts to put on both hats if required.

All equitable decisions are at the discretion of the court ,there is no automatic right to justice under equity like with common law and remedies are flexible and discretionary.The claimant introduces his argument (B) that fairness should be applied under equity ,the court decides If it should and if it does what remedy would be appropriate if any.
.

And you still haven’t found a way past the fact that a mortgage charge takes precedence over a claim of propriety estoppel due to the charge having a higher priority of interest.

You still haven’t determined what else has a higher priority of interest than an estoppel
Any information provided is not legal advice and you are advised to gain a professional opinion
Collaborate
Posts: 2119
Joined: Mon Feb 23, 2015 9:17 am
Number of Posts per Page: 20
Number of topics per page: 20

Re: shared garage path

Post by Collaborate »

What makes you say this? It's not correct.
ukmicky wrote: Tue Aug 11, 2020 12:18 am And you still haven’t found a way past the fact that a mortgage charge takes precedence over a claim of propriety estoppel due to the charge having a higher priority of interest.
I don't understand what you're saying, which is because again you misunderstand the nature of an estoppel. Estoppel is not an interest in land. It is a defence to a claim against land.
ukmicky wrote: Tue Aug 11, 2020 12:18 am
You still haven’t determined what else has a higher priority of interest than an estoppel
ukmicky
Posts: 5150
Joined: Sat Sep 27, 2008 10:13 pm
Number of Posts per Page: 20
Number of topics per page: 20
Location: London

Re: shared garage path

Post by ukmicky »

I think I defiantly understand things much better than you..


Anything with a higher priority like a a mortgage Charge prevents an estoppel defence from working against the mortgaged land. The owner of that land can’t provide any assurances that can legally be relied upon.
Any information provided is not legal advice and you are advised to gain a professional opinion
Collaborate
Posts: 2119
Joined: Mon Feb 23, 2015 9:17 am
Number of Posts per Page: 20
Number of topics per page: 20

Re: shared garage path

Post by Collaborate »

ukmicky wrote: Tue Aug 11, 2020 11:13 am I think I defiantly understand things much better than you..


Anything with a higher priority like a a mortgage Charge prevents an estoppel defence from working against the mortgaged land. The owner of that land can’t provide any assurances that can legally be relied upon.
I am a solicitor and I deal with property disputes between cohabiting partners. From time to time I have to plead issues of proprietary estoppel. I haven't the time or inclination to argue with you when you fail to back up your "advice" with any authority.

Please point me to all those threads relating to rights of way where you have asked whether any of the properties are mortgaged, and then pointed out that you cannot gain a prescriptive right against someone whose property is mortgaged, because that is in effect what you are saying.
ukmicky
Posts: 5150
Joined: Sat Sep 27, 2008 10:13 pm
Number of Posts per Page: 20
Number of topics per page: 20
Location: London

Re: shared garage path

Post by ukmicky »


I am a solicitor and I deal with property disputes between cohabiting partners.
Of course you are.


Please point me to all those threads relating to rights of way where you have asked whether any of the properties are mortgaged, and then pointed out that you cannot gain a prescriptive right against someone whose property is mortgaged, because that is in effect what you are saying.
your previous reply “

Proprietary estoppel would prevent a neighbour from reneging on an assurance a predecessor in title gave, in reliance on which OP extended their garage.”

Don’t need to show if any of the dominant tenements are mortgaged (even though it’s possible they are)because your reply was a blanket response that failed to point out that there are circumstances where an assurance by a neighbour will not provide a defence of propriety estoppel as some interests in land like a mortgage charge prevent the owner from giving such assurances.


If it was a response to a client the response should say Something like. Under the LRA act you and your neighbours will need to amend your register of titles to remove any rights the dominant tenements have over area of land you wish to build upon because under the law the dominant tenements right to access this area will always remain should the easement remain on their title register and plans

Should you not do so you may have a case for a defence of propriety estoppel should someone in the future attempt to get access to the area you have built upon back but you have to be a aware there are circumstances where an assurance by a neighbour will not provide a defence of propriety estoppel such as where there is a mortgage charge against the Dominant land and as the defence of propriety estoppel is a defence under equity even if you were to win there is no guarantees what remedy the court may decide upon.


And where did I mention Prescriptive easements ?
Any information provided is not legal advice and you are advised to gain a professional opinion
Post Reply