right of way

stufe35
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Re: right of way

Post by stufe35 » Fri Nov 29, 2019 2:41 pm

Regarding them blocking your right of way. It comes down to what is reasonable..and that is a judgement which ultimately can only be resolved in court if either party takes issue. So they pull in to unload thier car for a couple of minutes and it holds you up....ok for a couple of minutes yes , 5 mins ? 10 mins ? not in my book . Leaving logs blocking the route for an hour is well off the mark....your right to use the land to access your house trumps their right to store logs on it. What if you were leaving home to catch a train or a plane...this is clearly unreasonable. You have to prove 'substantial interference'.... i believe it would take a number of lengthy episodes for you to be successful in a court room and i would suggest seeking some other way of making them aware that their behaviour is outside acceptable parameters. Or just chuck the logs out of the way and get on with it (perhaps if they were blocking their front door they might think twice next time ?). The use of rights of way relies on both parties acting reasonably otherwise it can get very unpleasant and expensive.

ukmicky
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Re: right of way

Post by ukmicky » Sat Nov 30, 2019 3:04 am

Pilman has posted the relevant caselaw for placing gravel down.

In regards to this part in the letter

However you and we are both aware that this is not your intention. Your intention is to develop the barn as a holiday let. On that basis, that has a commercial implication as a business and does not fall under the right of way use and enjoyment of your property. In fact our clients would go so far as to say that is this in fact any other purpose which is strictly prohibited by the right of way.

You could write back and say

If I were you i would gain a more qualified opinion on your understanding of the easement and its wording as you and your clients understanding of the current law is wrong. The wording ''not for any other purposes'' does not restrict in anyway what I use the land for providing the use is for the direct benefit of the dominant tenement and to suggest any change of use to commercial purposes on its own is enough legally to prevent my use of the ROW would be a totally absurd legal position to take and would contradict case law going all the way back to Lutrell (1601) 4 Co Rep 86a and all the following cases that have used that judgement.

For all purposes connected with the use and enjoyment of the property is just that, its use must be for the enjoyment of the property and any use of the property is lawful , providing any redevelopment does not cause a radical change in the character dominant tenement and then also cause a substantial increase on the burden of the servient tenement.

I could provide you with a list of all the relevant cases that have ruled on this matter but I'm sure as a legal professional you are already aware of them but just to help you a little the current legal position from the court of appeal is

''where there is a change in the use of, or the erection of new buildings on, the dominant land, without having any effect on the nature or extent of the use of the easement, the change, however, radical, will not affect the right of the dominant owner to use the easement''
Any information provided is not legal advice and you are advised to gain a professional opinion

missmakepeace
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Re: right of way

Post by missmakepeace » Sat Nov 30, 2019 8:04 am

Thank you all
Very much appreciated.

pilman
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Re: right of way

Post by pilman » Sat Nov 30, 2019 5:08 pm

On a practical note simply putting gravel on top of grass is not going to work. You really need to dig out the topsoil to a decent depth perhaps 200 to 300mm might do and replace with hardcore
That is what I was going to say when I saw that you have just placed some gravel on top of the grassed surface.

Your right of way needs to be constructed to take the use of all the different types of vehicles that may need to be driven to the barn, including lorries or farm equipment if the barn was to be used for agricultural use.

You really need to include the cost of creating a properly surfaced right of way as part of the cost of redeveloping the barn to create a holiday rental building.

missmakepeace
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Re: right of way

Post by missmakepeace » Sat Nov 30, 2019 9:06 pm

Hi
Do we need the neigbours permission to do the work required on the ROW?

MacadamB53
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Re: right of way

Post by MacadamB53 » Sat Nov 30, 2019 9:29 pm

missmakepeace wrote:
Sat Nov 30, 2019 9:06 pm
Hi
Do we need the neigbours permission to do the work required on the ROW?
no - the right to create and maintain the RoW is implied with the granting of the RoW

missmakepeace
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Re: right of way

Post by missmakepeace » Sat Nov 30, 2019 11:00 pm

Oh my word! I can't imagine the response if we did this!!!!!

stufe35
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Re: right of way

Post by stufe35 » Sun Dec 01, 2019 6:57 am

missmakepeace wrote:
Sat Nov 30, 2019 9:06 pm
Hi
Do we need the neigbours permission to do the work required on the ROW?
The fact that you have asked this question tells me that you don't yet fully understand the information people have given you in this thread . The case law posted by pilman tells you this. You need to read up and get a good understanding of your legal position if you are going to take on and beat your neighbour successfully. There are some very knowledgeable people posting on here and helping you. As for me I'm just a simple bloke who has had a very similar experience to yourself, and won through largely speaking with the help of knowledge I gleaned on here.

As I put earlier ....its one thing having the legal right, it's another thing doing it against resistance from your neighbour, ultimately you may need assistance from the courts.

missmakepeace
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Re: right of way

Post by missmakepeace » Sun Dec 01, 2019 7:42 am

So our next move will be to acknowledge the letter sent to us this week, then engage someone who does ground works and proceed with making the ROW fit for purpose

Thanks everyone.

ukmicky
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Re: right of way

Post by ukmicky » Sun Dec 01, 2019 5:50 pm

Your next step is to talk to a solicitor and go armed with what we have posted . Im not saying you can’t trust what we have posted but for your peace of mind you shouldn’t trust what we have posted.
Any information provided is not legal advice and you are advised to gain a professional opinion

IdefixUK
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Re: right of way

Post by IdefixUK » Sun Dec 01, 2019 8:17 pm

Missmakepeace,
If you do not feel confident in tackling the "lawyer" used by your neighbour on your own, and you decide to engage a solicitor as ukmickey suggests, then you clearly don't want one with a similar level of legal expertise as the one you are up against.

A highly respected regular poster on this forum "Conveyancer" (from some years ago) suggested that, in general terms, that larger legal firms, with a specilist department dealing with land/property disputes is the way to go.

This seems to me to be sensible advice, even if the hourly rate is somewhat more than the smaller setups . A correctly worded letter from an experienced and knowledgeable solicitor (who regularly deals with this sort of case) might put this problem to bed for you once and for all....Well..there's always hope...I suppose :D


Regards.

ukmicky
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Re: right of way

Post by ukmicky » Sun Dec 01, 2019 9:18 pm

ukmicky wrote:
Sun Dec 01, 2019 5:50 pm
Your next step is to talk to a solicitor and go armed with what we have posted . Im not saying you can’t trust what we have posted but for your peace of mind you shouldn’t trust what we have posted.
I Didn’t quite express that how I wanted to but I think you understand what I was trying to say



(Quoting myself now , hopefully it’s not the second sign of madness)
Any information provided is not legal advice and you are advised to gain a professional opinion

missmakepeace
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Re: right of way

Post by missmakepeace » Sun Dec 01, 2019 9:49 pm

We are going to give it one more go ourselves.
Will Base the letter on advice given on this site. If they then refuse to see reason, we will engage a solicitor from a good company. We have been recommended one already.

Thank you all.

Will keep you posted.

IdefixUK
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Re: right of way

Post by IdefixUK » Sun Dec 01, 2019 10:32 pm

missmakepeace wrote:
Sun Dec 01, 2019 9:49 pm
We are going to give it one more go ourselves.
Will Base the letter on advice given on this site.
Well good luck with that, missmakepeace. Do you really think that a letter from you, no matter how well written and containing the relevant laws will budge them from their entrenched position? The neighbour has been (we assume) been told by their advisor that they can prevent your use of the ROW in order to frustrate your plans to convert and let your barn, they will hardy be likely to roll over on receipt of a letter from you. Added to this (importantly) you might just write something that you didn't want or need to say.
My thoughts in your situation would be to let a skilled, specialised, and experienced solicitor deal with it from now on. Such a solicitor will know which tactics are most likely to get the most rapid and effective result. If the neighbour's stance is intransigent, however, it still could end up in a court case, unfortunately.
Another option is just to get on with "upgrading" the ROW so that it is suitable for the ordinary use contemplated at the time of the grant of the easement and see what happens in terms of the neighbour applying for an injunction to prevent this.
Either way I don't suppose that you will be sharing tea and cakes with them on the patio next summer.

Regards

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