New member and this must be a first for this forum

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siteone
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Re: New member and this must be a first for this forum

Post by siteone » Sun Apr 14, 2019 11:45 am

peacemaker wrote:
Fri Apr 12, 2019 5:04 pm
Okay now I have a significant update!

My neighbour has appointed another solicitor who claim that the right of way to my property has the benefit of does not include a right to pass over where my neighbour’s fence now stands. The main argument is that at the time that the right of way was granted there was a hedge at the front of my property, meaning that it cannot have been in the reasonable contemplation of the people granting the right that I would use access over the point where the hedge stood, and now where the fence stands. Please note that this has not been substantiated as only a surface photo with a date scrawled on it has been provided.


Admittedly I have cherry picked the comments with a massive bias but happy for someone to counter them.
If you download Google Earth pro you might get aerial shots of your house going back in different years. Some of my properties have only a small history, others have a history going back many decades. I dont know what area you are in, and what google managed to get.

mr sheen
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Re: New member and this must be a first for this forum

Post by mr sheen » Sun Apr 14, 2019 1:53 pm

The grant of a right of way would have been as granted at the time of the grant and if part of the land was hedged then the right of way could not have included the land bearing the hedge and certain intentions can also be determined if a hedge was in place concerning land behind the hedge.
Aerial photos of the time of the grant plus photos plus witness statements will prove if a hedge was in situ and where exactly it was.

The respondent has provided evidence of his defence and need do no more unless the claimant corresponds further and indicates how the matter is to proceed. No doubt the insurers will consider the defence and reassess the probability of a successful claim.

peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Mon Apr 15, 2019 5:50 pm

Ukmickey, Pilman and Mac have all advised the hedge is largely irrelevant and even if it was present at the time when the easement was reserved then it must have been on the dominant tenant's retained land.

Mr Sheen, are you discounting their arguments (irrespective of hedge ownership) and agreeing with my neighbour's solicitor that parties must only consider the extent of the right of way and the reasonable contemplation of the grantee and grantor at the time of the grant.. The layout of the land at the time of the grant would determine what was possible to grant - (in their words).

mr sheen
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Re: New member and this must be a first for this forum

Post by mr sheen » Mon Apr 15, 2019 6:05 pm

No not discounting anything. The points made are valid in this case. The extent to which the hedge is 'largely' irrelevant will be argued by your side.
The respondent has now outlined the basis of his defence which also has basis in law and the extent to which it applies to this specific case will form the basis of a legal battle with counsel on both sides providing arguments and precedents that support their assertions and the Judge will determine whether the hedge is or is not relevant to the rights granted.

Opinion of counsel is probably a good idea so that all the evidence can be reviewed in view of the claim and outline defence.

The ball is in the claimant's court to pursue the matter as far as they want to go and this is why it is not really advisable to initiate legal action unless one is willing to go all the way to court and have the funding to do so ( I only initiate a legal dispute I believe I will win and have allocated sufficient resources to take it all the way.)

Very few people these days quake in their boots at solicitors letters but have already assessed their actions and know how far they are willing to push a complainant by their actions. He has decided to provide a defence and see if the matter proceeds to the next stage. The ball is back in your court.

peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Mon Apr 15, 2019 7:11 pm

Okay and I understand as well as appreciate your balanced view. What is frustrating, and which I have tried to explain to my wife, is that even with the deeds, facts and supportive case law, the outcome will be as result of subjective interpretation by the judge - if the case gets to litigation.

Without wishing to labour the point and obviously I would be inclined to agree with Ukmickey, Mac and Pilman, what is not clear to me is whether you think that I shouldn't have a ROW where the fence is now and hedge previously if a barrister confirms their views that the dominant owner, my predecessor owned the hedge and the other side accept this point?

Setting aside the views regarding a hedge/fence can't form part of a ROW and be on a drive/road etc, surely everyone who looked at that photo would say that the hedge and gates would belong to the cottage owner. Based on that do you think that the ROW should extend along the length of the boundary not just where our current opening is now/where the gates in the pic were.

Does anybody know any experienced barristers who specialise in ROW? The ones I've been provided have experience with easements and disputes but as far as I can tell not specifically ROW, not that this has been highlighted on their experience. I could follow this up but would also welcome recommendations too.

peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Mon Apr 15, 2019 8:22 pm

It only occurred to me this evening to view next door's title and plan out of curiosity (not the defendants BTW as that was post 10 pages or ago).

Whilst its no golden bullet it is interesting none the less. As far as I can tell there is no explicit ROW specified unlike in my title so how would their ROW work?

Whats is also odd in point three of the second schedule on my title it explicitly species my ROW but in the same section on their title it only specifies:

iii. .....
NOTE: The retained land referred to is the first line of my property's address - in other words my property which I don't quite undersand as its referred to multiple times throughout their register?!

Also on the their title plan there is no shaded yellow ROW on the defendant's road like with mine, only their property boundary is outlined with a red border box.

Here is it in full:

A: Property Register This register describes the land and estate comprised in the title. Xxxx: xxxx 1 The Freehold land shown edged with red on the plan of the above Title filed at the Registry and being ‘NEXTDOOR’ COTTAGE’
. 2 (21.07.1998) The land has the benefit of the following rights granted by the first schedule but is subject to the following rights reserved by the second schedule to a Transfer of the land in this title and other land dated 1 June 1998 made between (1) Plant breeding business (Transferor) and (2) NEIGHBOUR/DEFENDENT(Transferees):-
"THE FIRST SCHEDULE hereinbefore referred to (Rights in favour of the Transferees)
1. The full and free right for the Transferees in common with the Transferors and its successors in title owners and occupiers for the time being of the retained land of the Transferor and any part thereof to lay within eighty years from the date hereof any drains channels sewers pipes water courses cables and wires under the retained land with all easements rights and privileges appropriate for constructing and repairing renewing and relaying and maintaining the same subject to the Transferees being responsible for any damage caused in the exercise of such rights before reinstating and making good the same. 2. The right of the Transferees and their successors in title and lessee and tenants workmen servants agents and other duly authorised by them so to do to enter the retained land or any part thereof after giving reasonable notice for the purpose of altering repairing reinstating repainting and maintaining any building erected at the date hereof on the property hereby transferred in so far as such alterations repairs reinstatements and repainting and maintenance cannot be carried out without such entry hereby reserved and exercised subject to the Transferees and their successors in title being responsible for any damage caused by the exercise of such rights.
2. THE SECOND SCHEDULE hereinbefore referred to (Rights reserved to the Transferor and its successors in title lessees and tenants)
i. The right at any time hereinafter to erect or suffer to be erected and to alter any buildings or other erections now or hereafter to be erected on any part of the retained land and with all such windows and openings for light and air and in such manner and all respects as the Transferor may think fit without any consent whatsoever on the part of the Transferees or their successors in title owners or occupiers for the time being of the property hereby transferred or any right on the Transferees part to object thereto or claim compensation on the grounds of any interference with the access of light or air to the property hereby transferred or otherwise and no windows or lights which are placed in any such buildings for access of light or air thereto shall at any time hereafter be in any manner stopped obstructed or interfered with by the Transferees or their successors in title. ii. The full and free right for the Transferor in common with the Title number GRxxxx 2 of 4 A: Property Register continued Transferees and their successors in title owner or owners and occupiers for the time being of the property of uninterrupted passage and running of water soil gas electricity and other services to and from the retained land through all drains channels gutters sewers pipes water courses cables and wires which are now or may at any time within eighty years from the date hereof be laid in over or under the property hereby transferred with all easements rights and privileges appropriate for constructing repairing renewing and maintaining the same subject to the Transferors and its successors in title being responsible for any damage caused in the exercise of such rights and for reinstating and making good the same.

iii. ..... NOTE: The retained land referred to is MY PROPERTY

3 (21.07.1998) The Transfer dated 1 June 1998 referred to above contains the following provision:- "It is hereby declared as follows:- (a) All drains sewers septic tank apparatus wires pipes and cables now used and enjoyed or intended to be used in common by the owners and occupiers for the time being of the property hereby transferred and the retained land shall continue to be so used and enjoyed and shall be repaired and maintained at the fair and proportionate expense of the owners of the properties entitled to use them. (b) In the absence of agreement as to what constitutes a fair and proportionate expense for the purposes of (a) above the matter shall be determined by a Surveyor nominated on the application of either party by the President of the Royal Institute of Chartered Surveyors who shall act as expert and his decision including as to his costs shall be binding."
4 The land has the benefit of the rights granted by but is subject to the rights reserved by the Transfer dated 21 December 1999 referred to in the Charges Register.
B: Proprietorship Register This register specifies the class of title and identifies the owner. It contains any entries that affect the right of disposal. Title absolute
1 (XX.XX.20XX) PROPRIETOR: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
2 (XX.XX.20XX) The price stated to have been paid on DATE was £XXX.
3 (XX.XX.2XXX) The Transfer to the proprietor contains a covenant to observe and perform the covenants referred to in the Charges Register and of indemnity in respect thereof. C: Charges Register This register contains any charges and other matters that affect the land. 1 (09.02.2000) A Transfer of the land in this title dated 21 December 1999 made between (1) NEIGHBOUR/DEFENDANT and (2) XXXXX and XXXX contains restrictive covenants. ¬NOTE: Original filed.

mr sheen
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Re: New member and this must be a first for this forum

Post by mr sheen » Mon Apr 15, 2019 9:01 pm

<t>I owned a pair of semi-detached 18century cottages with complex history and when I purchased them, the land next to cottage A was owned by cottage B......with older properties assumptions that we make today are not necessarily the legal position.

Winning I n court is something of a gamble. Evidence is king. I would be focussed on the specific claim and defence and be assessing the strength of the evidence and what the defence is likely to be supported by. So what 'evidence' do you have that proves your right of way extends to the land where the respondent has shown there was a hedge? He also claims that the entrance was restricted to 12m and that victorian gates restricted the access...is there any evidence of this (aerial photos, photos, historical documents?
Ask questions....try to work out the opposing team's arguments...
The right of way was a retained right over land that was sold off so it is likely to be argued by the defence team that the retained right could only have been intended over the available unencumbered land
How long did the hedge remain in situ after the grant of the right of way?; when was it removed?

MacadamB53
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Re: New member and this must be a first for this forum

Post by MacadamB53 » Tue Apr 16, 2019 12:07 am

Hi mr sheen,

what 'evidence' do you have that proves your right of way extends to the land where the respondent has shown there was a hedge?

erm, the deed and plan?!?

or am I missing something?

kind regards, Mac

mr sheen
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Re: New member and this must be a first for this forum

Post by mr sheen » Tue Apr 16, 2019 7:42 am

Hi Mac
That one piece of evidence hasn't convinced the respondent or his solicitors and a counter-argument is being developed....for which there is likely to be evidence. Once one knows the counter-argument that is being used, one is in the advantageous position to be able to develop and strengthen one's case with additional evidence of the claimed assertion.

The defence being put forward in this case relates to the intention at the time of the retention of the rights. Knowing the counter-argument enables one to develop one's case further to strengthen it with additional evidence that the deed was in fact the intention, such as....photos showing all the area in the plan has been available and used for access for x years; photos/witness statement confirming hedge was removed in 19xx; witness statement from previous owners that all area on plan was used as access etc etc....sending additional evidence to the respondent's solicitor that counteracts their defence is more likely to convince them of the weakness of their defence and move towards settlement.

Presumably, Mac, your advice to the OP is to just keep waving those 2pieces of paper and perhaps start shouting louder!!? Because to date they haven't convinced the other side.

Kind regards, MS

Collaborate
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Re: New member and this must be a first for this forum

Post by Collaborate » Tue Apr 16, 2019 8:43 am

If anyone fancies holding on a few days I'm awaiting an advice from counsel on a very similar issue. Might have something useful to add to the debate in around a week or so.

peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Tue Apr 16, 2019 10:18 am

Hi Collaborate, would you be so kind as to outline the dispute ahead of the expected Counsel’s opinion please so we can assess similarities.

Collaborate
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Re: New member and this must be a first for this forum

Post by Collaborate » Tue Apr 16, 2019 11:48 am

I won't be doing that, as I must preserve my client's confidentiality. All I can say is that it involves the extent of an implied right of way and an express right of way.

peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Tue Apr 16, 2019 12:41 pm

No problem, I wasn't aware you're a legal professional representing a client. I assumed it was a personal matter.

peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Tue Apr 16, 2019 12:42 pm

Is there anyone who could look at my post above re my semi detached neighbour's title and comment please?

peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Tue Apr 16, 2019 8:29 pm

The hedge was gone by 2004 - the next earlier image is dated 1999 via getmapping.com.
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