ROW Easements and covenants

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IonSquare
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ROW Easements and covenants

Post by IonSquare » Tue Oct 29, 2019 12:41 pm

Thanks to all that contribute to this fantastic resource. I've been a long term lurker, enthusiastically trying to learn as much as I can from many of the experienced posters. I'm now tentatively ready to pop my head over the parapet and join in...!

I've come to understand that a ROW can be 'obstructed' as long as that obstruction isn't deemed to be substantial in nature. I've also realised how many developments, especially modern, have shared access roads that serve several properties. One particular question I can't work out an answer to is as follows.......when an Easement exists, say, for a shared access road where each property owns a small section of the road but has reciprocal ROW agreements (pass and repass etc.) with all of the other properties, what use is a restrictive covenant stating 'not to obstruct in any way the roadway'? Isn't the roadway covered by ROW Easement law when it comes to obstruction? Does a restrictive covenant enlarge the Easement or add nothing of any value? A case law I found very interesting to read is Smith v Garrard [2004] where such a covenant was oringally thought to enlarge the Easement but the decision was overturned at appeal due to the judge's different interpretation of the covenant wording.

I'm sure more questions will follow. :D

mr sheen
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Re: ROW Easements and covenants

Post by mr sheen » Tue Oct 29, 2019 7:38 pm

With an easement you would have to show 'substantial interference' to succeed in court.
The presence of a restrictive covenant that says 'not to obstruct in any way the roadway' provides the opportunity to enforce the covenant against someone obstructing the road way 'in any way' rather than having to prove a substantial interference.

IonSquare
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Re: ROW Easements and covenants

Post by IonSquare » Wed Oct 30, 2019 9:18 am

Thanks for replying, mr sheen, much appreciated.

As you probably guessed, I asked the question due to an issue we're currently facing. After many peaceful years living off a shared courtyard, our immediate neighbours have taken umbrage to us extending our house and are using one of their cars to heavily restrict but not entirely block access to our driveway. They have always been the only people to park on the shared access but did it at a respectful distance from our entrance, so we were happy to live and let live. The advice I've since read - to tread very carefully when buying a property with a shared anything - is solid! Thankfully, once videos were provided of the 8-point turn needed to reverse onto our private driveway, our legal insurance agreed to take it on due to having a reasonable propspect of success. They're relying on the covenant as well as the easement, so I wondered how much weighting would be applied to both. I'm slightly wary of saying too much regarding our claim on a public forum but will keep updating this thread in the hope it helps someone in a similar situation.

IdefixUK
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Re: ROW Easements and covenants

Post by IdefixUK » Fri Nov 08, 2019 11:44 pm

IonSquare75 wrote:
Tue Oct 29, 2019 12:41 pm

A case law I found very interesting to read is Smith v Garrard [2004] where such a covenant was oringally thought to enlarge the Easement but the decision was overturned at appeal due to the judge's different interpretation of the covenant wording.

Hello IonSquare75.
I think that if you re-read that case (I had to several times!) you will realise that the first trial judge awarded Mr Smith £100 because Mr and Mrs Garrard had broken the part of the covenant undertaken by Park Portfolio (the developers) not to cause an annoyance or nuisance etc. This could have related to the use of some of the land as a shrub garden and bench and patio area and/or their parking as an annoyance (paragraph 6...but not under the wording of paragraph 10 relating to the roadway) .
The first trial judge backtracked from taking a literal interpretation of the wording of paragraph 10 and took a "purposeful" approach to that wording. This was confirmed at the appeal, so not overturned at all.
At appeal, it all effectively turned (on construction) on those few words "over which other persons have ROW". It seems that if the draughtsman had omitted them altogether then Mr Smith would have won.
Not all contributors to this forum will necessarily agree with me, but that's the way I read it.
So you can see that the exact wording of any covenant (or easement) can be critical as to what rights you actually have.

Regards

IonSquare
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Re: ROW Easements and covenants

Post by IonSquare » Sat Nov 09, 2019 6:54 am

Hi IdefixUK

Thanks for correcting me on the appeal judgement. Despite reading the case several times, I still managed to misunderstand the original judgement! The 'good' news, if any such thing exists for us, is that the judgement still possibly supports our argument against my neighbour. The covenant doesn't make any reference to the ROW we all have across the roadway, it just states that the roadway must not be obstructed 'in any way'. Our solicitor believes that those 3 little words carry a lot of power and it was the intention of the developer to ensure the courtyard area is kept free of vehicles etc. Stressful times for my family but relieved that we have legal insurance willing to back us.

cleo5
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Re: ROW Easements and covenants

Post by cleo5 » Sat Nov 09, 2019 11:43 pm

Check the small print of your legal insurance.
We tried to use ours and part way the insurance appointed solicitor decided it was a neighbour dispute and withdrew even though we were in the right and won.
Yours too is a neighbour dispute.

ukmicky
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Re: ROW Easements and covenants

Post by ukmicky » Sun Nov 10, 2019 1:45 am

Who owns the land.

Sometimes things are written in an easement or covenant that are not totally enforceable as the terms go against a more important legal principle and if allowed would prevent the actual right they are trying to protect (easement) existing in law. And i would say this may be the case here.

If I owned that land and wanted to defend your action I would argue under the ouster principle those words would prevent reasonable use of the land by the landowner and therefore for the easement to survive they need to be interpreted not as strictly as the claimant would like them to be interpreted.

They also in my opinion may prevent reasonable use for the dominant tenement and prevent normal ancillary rights attached to an easement from being excercised. So once again I would say they can’t be interpreted as strictly as you would like them to be.

That doesn't mean those words carry no effect because they do ,just not as much as you would like. Therefore you will still need to show substantial interference to win but not quite to the level if those words were not attached . In the end It all comes down to is the interference with your access reasonable and an 8 point turn is not reasonable.
Any information provided is not legal advice and you are advised to gain a professional opinion

IonSquare
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Re: ROW Easements and covenants

Post by IonSquare » Sun Nov 10, 2019 9:58 am

Hi ukmicky

Many thanks for your opinion, it’s good to be able to consider a range of possible outcomes. Our neighbour owns the strip of the courtyard they’re parking on, just as everyone else owns a strip outside their property. Interestingly, if everyone parked a car outside their own house, the whole access road and courtyard would grind to a halt. It’s only due to our other other immediate neighbour not parking on the shared access that we could manoeuvre on with an 8-point turn!

IonSquare
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Re: ROW Easements and covenants

Post by IonSquare » Sun Nov 10, 2019 10:00 am

cleo5 wrote:
Sat Nov 09, 2019 11:43 pm
Check the small print of your legal insurance.
We tried to use ours and part way the insurance appointed solicitor decided it was a neighbour dispute and withdrew even though we were in the right and won.
Yours too is a neighbour dispute.
Thanks for the warning. Our solicitor has called it a Property Dispute which, so far, seems to be covered.

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