Real life case study.

dantheaxeman
Posts: 58
Joined: Mon Mar 31, 2014 8:33 am

Re: Real life case study.

Post by dantheaxeman » Thu Dec 06, 2018 5:42 am

Hi IdefixUK, I'm not surprised you are having trouble with those plans (I assume you mean the plans from the TP1), unfortunately those are the plans registered at Land Registry. The plan from the original planning application looks to be the original source, its much better quality too

Image

SwitchRich
Posts: 192
Joined: Wed Feb 24, 2016 10:34 am

Re: Real life case study.

Post by SwitchRich » Thu Dec 06, 2018 11:14 am

dantheaxeman please do continue with this as I am certainly finding it interesting. Prior to this I would have assumed that what is on a deed would be gospel and that all solicitors should be competent.
It worth knowing what can go wrong in situations like this so I think what you are doing is very useful. :)

peacemaker
Posts: 136
Joined: Tue May 08, 2018 9:12 pm

Re: Real life case study.

Post by peacemaker » Fri Dec 07, 2018 12:13 am

Please
Continue

dantheaxeman
Posts: 58
Joined: Mon Mar 31, 2014 8:33 am

Re: Real life case study.

Post by dantheaxeman » Fri Dec 07, 2018 6:34 am

Thanks all, I'll post some more when I have some more time.

Thanks, Dan

dantheaxeman
Posts: 58
Joined: Mon Mar 31, 2014 8:33 am

Part 5 - Summary of my position January 2014 and subsequent action

Post by dantheaxeman » Tue Mar 19, 2019 10:19 pm

Hi All, apologies for the delay in posting, i've been very busy at work. Anyway, this next update takes us up to the early parts of the litigation process...

At the end January with Mr Neighbour having signed the TP1 on the 17th May 2013 (although I hadn't seen it at this point) and the 2014 Deed on the 15th January 2014 I find myself waiting for the 2014 Deed to be registered to see what the Land Registry make of it all. If I had a bit more knowledge/confidence at this time I probably would have taken a number of actions sooner, but that's always the benefit of hindsight.

I won't post the license in full as unlike the Deeds is isn't a matter of public record, but in summary it was a contractual license in consideration of £1 for the neighbours to use part of my driveway for access and egress to/from their garage and no other purpose. There were a number of covenants, not to obstruct the driveway etc. and it was terminable on breach. Most of the useful stuff was on page 3 below...

Image

I could see the license didn't give them what they wanted as the neighbours continued to use my driveway to park on the crosshatched blue area, including the part they had just transferred to me. Their garage was being used for storage and was completely full, so that they could not park in it even if they wanted to. It was clear that without intervention they were just going to carry on as if nothing had changed, they continued to block the driveway and park on my property, they were also using the crosshatched blue area for a skip in breach of both the license and a number of restrictive covenants. We weren't sure whether the neighbours intended to stay or sell up at the time and one concern I had was that there was the potential for the license to be converted to a right by virtue of s62 of the Law of Property Act if it was sold.

https://www.legislation.gov.uk/ukpga/Ge ... section/62

I decided to terminate the license at the end of January for a number of breaches, in particular, they had never paid the £1 license fee. I informed the neighbours and told them that I intended to build a wall on the new boundary on the crosshatched blue area, but would still be retaining my right of way over the crosshatched blue area.


I have already written about the defects with the TP1

The defects from the 2014 Deed are similar in some ways, the Grantee's Property refers to a plan that reflects the neighbours property prior to the transfer in the TP1, so any clause that refers to the Grantee's Property is only partially effective.
There are further defects, but the most significant in my eyes and coupled with the covenant "Full Title Guarantee" (found in the law of property miscellaneous provisions act 1994 https://www.legislation.gov.uk/ukpga/1994/36/part/I) is the failure of clause 2.1 which required that the right of way from the 1985 Deed be "extinguished", this now being impossible without the owner of the new property.

This is further evidenced on the register to both properties which now contains an entry that reads..

"By the [2014 Deed] the right of way granted by the [1985 Transfer] was expressed to be released but the validity of the release has not been determined."

From my neighbours perspective there are multiple issues that would concern me if I were in their position. My interpretation of the 2014 Deed is that they now find themselves liable in contract for all the transgressions under Schedule 3 not only for themselves and their visitors, but also for the owners of the new property and their visitors. The biggest fly in the ointment to my mind is the over the new right of way.

The old right of way has been released if not extinguished and therefore Mr & Mrs Neighbour can't use it anymore. They have been granted two new rights instead, these begin "Subject to the Grantee complying with the terms of this Deed,"....

So the million dollar question I've been asking since January 2014 "what happens to the right of way if the Grantee does not comply with the terms of the Deed?"

I still don't have a definitive answer, but I intend to find out by applying for declarations under s84(2) of the law of property act 1925. The section is specific to restrictions affecting freehold land. I realise of course that a right of way is not a restriction, but I expect I can rely on the restrictions implied from common law such as substantial interference or derogation from grant. In my particular case there is also a restrictive covenant not to interfere with the exercise of the rights of way to which I expect the legislation to apply.

Anyway, this is clearly in the future, but for those that are interested, the article that pointed me in this direction is here. https://www.falcon-chambers.com/images/ ... 05.16_.pdf

And the link to s84 LPA 1925 here https://www.legislation.gov.uk/ukpga/Ge ... section/84

So back in 2014,Mr and Mrs Neighbour dispute that they have breached the license, dispute that I am able to terminate it and continue to misuse my land. I expect they realised that they couldn't stall me for too long and moved quite quickly to engage some labourers to start dismantling the garage.

To enable them to start removing the roof tiles , the workmen erected a platform on my drive. I informed them that this wasn't appropriate and that they didn't have any right to do this and that I would be removing the platform. Their response was that they would cut my head off. This is the event that I consider to be "straw that broke the camel's back". From this point onward I realise that there is no "quiet enjoyment" of my property while we share so much common space and I go back to looking at the Deeds to try and find a way forward for myself and my family.

Image

After the garage was removed, the neighbours were unhappy about how open they were at the back, and wrote that they were going to put up a "security fence", setting out a string where they intended to erect it. This was useful to me, because it showed their interpretation of the boundary. These things can get messy, especially with overhanging eaves and guttering etc and especially when you have a neighbour that disputes everything. So I responded that I agreed the boundary, but that I intended to retain my right of way. I had assumed that the "security fence" was a temporary solution. I was wrong as during the next few days they continue to erect a concrete post and timber panel fence with concrete gravel boards. I continued to point out that I had retained a right of way over land they were now fencing in, I also pointed out that they hadn't complied with the 2014 Deed, which is a condition of their use of the right of way.

Image

When the fence was complete I realised that the gap in which they intended to drive was much narrower than the 6m length of the garage and noticed that they had installed gate posts. The practical upshot of this was that they couldn't get a car through the gates if we were using our parking spaces. You may have noticed that the width of the right of way isn't specified in either the 1985 or 2014 Deeds, the only evidence to show the width of the original right of way (and by extension the new right of way) was that we had retained the set of wrought iron gates (measuring 1.4m each) that originally sat at the entrance way (you will see the gates and their original location on the aerial photograph posted previously). Once the new gates were installed, they finished them off with lights and a doorbell. I wrote several letters to the neighbours solicitors outlining all the problems, I got a couple of empty replies, then they were de-instructed.

So we were in a bit of a mess, all the indications were that delivery vehicles would drive up to their gates, ring the doorbell and block the drive, we were at risk of losing our parking spaces, we continued to be denied our own rights (both the right of way and the restrictive covenants) and we could no longer bear coming into frequent contact with the neighbours. I would be very interested to hear what the forum members would do in my place, but for the time being I'll tell you what I did.

I was not entirely sure what the wording of their right of way meant. I had done some reading on "determinable fees" and "fee simple subject to condition subsequent" and I was unsure if the right was either of these or something else. What I was convinced of was the logic, which was to my mind "you can use this right of way as long as you comply with the 2014 Deed". They hadn't complied with the 2014 Deed, and I didn't want to miss the boat so to speak, so in line with the law surrounding a "fee simple subject to condition subsequent". I wrote to the neighbours informing them that I was terminating their right of way. I had already ordered a number of railway sleepers to build a wall along the new boundary. I then increased my order to extend the wall all the way to the neighbours back door. The intention being to prevent them using the back door as their main entrance (they could still use it, just not from my side) and to keep us from encountering each other so frequently.

While I waited for the delivery of the sleepers/workmen I put a "no access" sign up in an attempt to prevent cars being parked beyond the gates.

Image

I had to dig it out of the neighbours skip on a number of occasions, but I continued to repair/replace it until eventually the sleepers and workmen started.

Image

I'm sure you can imagine the neighbours reaction to this turn of events. Once they realised that the wall was going to block their new gates they parked their car in front of it to prevent my workmen from completing the job. The solicitor was back on the scene and writing me letters threatening to pursue an injunction.

Image

One evening I noticed that the car wasn't parked as closely to the unfinished wall as it had been previously, so I set my alarm for 06:00 and completed the bottom couple of rows of sleepers first thing in the morning before starting work. It wasn't a huge amount of work, but it was enough that it made it possible for me to continue regardless of any car.

Image

There were a few incidents over the next few weeks.

I had to write to their solicitor as Mr Neighbour had left his motorbike in his garden (if the crosshatched blue area can be considered garden) which he refused to move.

The builder returned equipped with chainsaw ready to tear the wall down. The police were called to prevent criminal damage

I agreed to take the wall down myself, enough that Mr Neighbour can get his motorbike out. He had spun the police a story that he was going on a motorbike holiday. So I make an opening in the wall the following weekend, then two weeks(ish) later I complete the wall with the motorbike still inside.

A bit later on in the story when the litigation gets fully under way, I am provided with the invoice for "the holiday". A few things about it did not ring true. Firstly it was dated after the Police incident. Secondly I looked up the tour company and noticed that the phone number for bookings differed from Mr Neighbours work number by only the final digit. Finally the managing director of the tour company was not only Mr Neighbours employer, but he was also the witness to Mr Neighbours signature on the 2014 Deed.

During this quiet period the neighbours instruct a new solicitor. The new guy is a very aggressive litigator and the dialogue between us was far from helpful. I finished the wall off with some gates at the entrance and spent the next months avoiding the neighbours and corresponding (banging my head against a wall) with their solicitor.

There are less incidents over the next month or two, but eventually I have to sign for a large bundle containing a number of witness statements and photographic evidence and this is where I shall pick up next time.

dantheaxeman
Posts: 58
Joined: Mon Mar 31, 2014 8:33 am

Re: Real life case study.

Post by dantheaxeman » Wed Jul 10, 2019 6:22 pm

Hi all, sorry I've gone quiet. I'll pick up the story when I can.

Thanks, Dan.

IdefixUK
Posts: 491
Joined: Mon Jan 01, 2018 12:07 pm
Number of topics per page: 25

Re: Real life case study.

Post by IdefixUK » Thu Jul 11, 2019 12:42 pm

Dantheaxeman,

It seems that they haven't yet cut off your head as they threated to do!
Eagerly awaiting the next instalment of this facinating situation.

Regards

SwitchRich
Posts: 192
Joined: Wed Feb 24, 2016 10:34 am

Re: Real life case study.

Post by SwitchRich » Fri Jul 19, 2019 10:34 am

It is a really interesting example! Thanks for posting this story :)

Post Reply