Does my neighbour have any right of way??? PLEASE HELP

marley46
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Re: Does my neighbour have any right of way??? PLEASE HELP

Post by marley46 » Thu Jun 23, 2011 1:35 pm

No they are not from the solicitor that his daughter works at. The statuory declaration is witnessed by one solicitor and I am getting letters from another solicitor.

ukmicky
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Re: Does my neighbour have any right of way??? PLEASE HELP

Post by ukmicky » Thu Jun 23, 2011 9:04 pm

You need a stat dec from the previous owner of your land rebuting everything they have said.

That is the first thing you do as you will need it if this goes to court.

It does not even have to be a stat dec witnessed by a solicitor a statement of truth is legally just as valid

http://webarchive.nationalarchives.gov. ... part22.htm

If you want an example google statement of truth
Any information provided is not legal advice and you are advised to gain a professional opinion

wonderhorse
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Re: Does my neighbour have any right of way??? PLEASE HELP

Post by wonderhorse » Mon Jun 27, 2011 3:58 pm

I have the same problem

My neighbour says he has rights to park on my drive way as he parked there for 20 years without the old owners saying anything

I have had the old owner sign a stat dec to say they parked there with his permission, so hopefully I can put a stop to him trying to use my driveway!

But in the meantime I am trying to sell the house, so this is really scuppering everything with land reg.....any one here have any idea how long this dispute could take to resolve?

The neighbour is a complete arsehole and will not withdraw the application even though I have proof to show he is lieing....

Any help much appreciated!

People in this position, you are not alone!! Dont let them get away with it.

marley46
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Re: Does my neighbour have any right of way??? PLEASE HELP

Post by marley46 » Sat Oct 29, 2011 6:34 pm

Hi all, back again!!! I replied back to his solicitor on 30 June 2011 with this response:

The information provided is not evidence of a right of way. We have been in communication with land registry and they inform us that section A: 3 “The right claimed is not included in the registration” means that the easement is not guaranteed and this may not be a valid claim.

Our land does not benefit their property in any way. They have purchased a section of land enabling any side access required.

We heard no more until today!!! - 29 October 2011 but not from the same Solicitor, it's from another Solicitor basically starting again!!! Does this mean that the first solicitors didn't think he has a worthy case??

The closing paragraph states: From the information given to us it appears you are liable for the interference to our clients rights of way. If you do not remove all obstructions to our clients rights of way and settle our clients claim we will have no alternative but to issue Court proceedings for an injunction. If this becomes necessary additional legal costs will be incurred which will be included in the claim against you, and our client will also be entitled to damages.

Doing my head in!!!

pilman
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Re: Does my neighbour have any right of way??? PLEASE HELP

Post by pilman » Sun Oct 30, 2011 12:00 pm

From the information given to us it appears you are liable for the interference to our clients rights of way. If you do not remove all obstructions to our clients rights of way and settle our clients claim we will have no alternative but to issue Court proceedings for an injunction. If this becomes necessary additional legal costs will be incurred which will be included in the claim against you, and our client will also be entitled to damages.
Analysis of that quote shows the following points.
This solicitor actually uses the words "it appears" not the words "it is proven"
Then the words "our clients rights of way" which is the entire matter that is subject to argument, as there is currently no proof of any such right of way that exists for the benefit of their client's property.
Now there is a statement that begins with the words "If this becomes necessary" which implies so much, but also so little as the first word "if" leaves all actual facts of what can happen next completely up in the air.

It appears that you have received a standard form of letter sent out by a solicitor reflecting matters in the most advantageous way possible in support of his client's interpretation of the matter at hand. That is what is meant by "From the information given to us".
It means only one side of the story is known by this particular letter writer, so the only knowledge is what has been gleaned from his client who he is being paid to represent.

The whole point of such a one-sided letter is "to do your head in" so that you give up any attempt to dispute such a claim because of the "costs" you are being threatened with.
It is the losing party in any legal dispute that pays costs, so you are being intimidated by the words used in that letter into thinking that has to be you.

Yet on the facts as explained by you in Garden Law, it seems unlikely that you will lose if the neighbour actually does start legal proceedings based on a statement that full vehicular use has been made of the route claimed for a full period of 20 years.

My maths may be a little rusty, but the time from the purchase of land in 1980 until some time in 2009, when the statement was made, could be less than 19 years. It is certainly not more than 20 years as required by the law to prove a prescriptive easement, yet it was in 2009 that such a claim was made.

That does not support a prescriptive easement, it rather supports the fact that the person making the claim is less than truthful, if the purpose of the right of way was to get from one piece of land to the other piece of land that was first bought in 1980.

Sudynim
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Re: Does my neighbour have any right of way??? PLEASE HELP

Post by Sudynim » Sun Oct 30, 2011 1:45 pm

I agree with pilman, that's a far from convincing letter.

I would suggest that you reply something like this :

Thank you for your letter dated blah, asserting your client's view that he has a Right of Way over my land. I do not accept or recognise this claim, and I will not agree to it. I also note your intention to issue proceedings.

I look forward to receiving your detailed Letter Before Claim, in accordance with the CPR Practice Direction on Pre-Action Protocol. Please remember to fully describe all of the specific facts, laws and documents which you believe support your client's claim, and to enclose copies where relevant. After taking advice I will respond with my considered position, within the required 14 day period.


Basically, they have to serve you with an outline of their entire basis of claim. Which you can then discuss with the experts here (not me!), or with a solicitor. http://tinyurl.com/4yz3acm

marley46
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Re: Does my neighbour have any right of way??? PLEASE HELP

Post by marley46 » Sun Oct 30, 2011 8:03 pm

The first paragraph of the letter states:

We are instructed by our client to seek an injunction and damages against you in respect of losses suffered by our client arising from an interference with our clients' right of way.

Pilman - 1980 til 2009 is 29 years - is this what you mean??

pilman
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Re: Does my neighbour have any right of way??? PLEASE HELP

Post by pilman » Mon Oct 31, 2011 12:26 pm

Whoops, a senior moment.
Sorry I mistakenly calculated a period of 19 years, although obviously it is 29 years.
Disregard that part of my last posting, but it does appear to be sound advice from Sudynim.

Anon
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Re: Does my neighbour have any right of way??? PLEASE HELP

Post by Anon » Tue Nov 01, 2011 3:18 am

Hello Marley46, I'm sorry to throw a spanner in the works, but I wonder if a few things may have been overlooked.
I have also contacted the farmer (previous owner of the land) and showed him the statuory declaration. He disagrees with a few points made 1. Neighbour states the farmer put a gate at the bottom of his garden - the farmer never did! 2. Neighbour claims he has used it for vehicluar access - the farmer said he never did! The farmer said if we wanted he would sign a letter stating this.
Firstly, we are sure that the farmer has registered all his land due to the volume he has sold.
If the farmer had a large amount of land (and has sold it in smaller sections?) can he really remember what he did with every hedge/fence opening, track, etc, over many years?
Could your neighbour (and/or you) have different understandings of who "the farmer" was/is? I'm thinking along the lines of the land-owner who sold you the farmland not being the only worker on the land, or the farmer's father having the same name, etc.
He is not looking for access across our field but an easement from the back and down the side of his garden on our field. There are no benefits or reason for him to go on our land.
I think I can see some benefit in it (using more of the garden as lawn, flowers, etc, rather than track-way, while still retaining extensive access) but could you post a plan of the layout. A right-of-way would not generally be invalid just because the user could travel over their land instead.
In 1980 our neighbour purchased a strip of land that is down the side of his property so he already has additional 15ft strip of land with a fence marking the boundary of our land.
Did the neighbour purchase the 15ft strip from the farmer? Did he rent it from the farmer immediately before this? If so, the neighbour may have the benefit of an implied easement to gain access to the strip in the way he did as a tenant.
Doesn't an easement have to be of benefit to the property?
An easement is "A right over a piece of land for the benefit of another piece of land". A right of way may be for the benefit of the additional 15ft strip (not necessarily for the other neighbour's other land).
Pilman: The common owner of two properties needs to use your land as the servient land to allow free access between his two separate parcels of land.
It is now 21 years since he bought the land, so he will need to prove that for 20 of those years he has already been using your land by openly exercising this right of way without permission and without force.
The claim is supported by Statutory Declaration... it states:
myself and my family together with friends and visitors have used the Access Way continuously from 1980 upto the date of this Declaration as of right and without any interruption or payment or acknowledgement to any person.
The use of the Access Way referred to has been to pass and repass over the Access Way between the Property and the main road at all times of the day and night with or without vehicles of any description for all purposes connected with the use of the Property as a private dwelling house.
Did a map accompany this declaration? Could you post an anonymised version of it?

marley46
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Re: Does my neighbour have any right of way??? PLEASE HELP

Post by marley46 » Tue Jan 17, 2012 4:56 pm

Hi Everyone

Back again!!!

We had a little break from Solicitors letters but now we are receiving letters from a different Solicitor!! Our neighbour has obviously given up on the last Solicitor and is trying another one. We telephoned the previous Solicitors and they said the case is still open with them. We replied to the new Solicitor but they have come back to us stating that the case is closed with the previous Solicitors and that they are now working on behalf of our neighbour. So now we are back to square one again, starting all overy again. Doing my head in, what is he's problem.

Does anyone know if I can get the previous land owner to make a written statement or something to prove that my neighbour has never been given a ROW?

If the previous owner gave my neighbour permission to work across the land does that mean he automatically has a ROW?? and can he claim an easement??

The Solicitors letter states "if we do not provide a key to the padlocked gate within 14 days we are instructed to take further steps towards issuing proceedings against you for an injunction to prevent you interfering with our clients right of way. Our client will also be entitled to damages as part of the proceedings and will seek to recover the costs of the proceeding from you."

Many thanks

despair
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Re: Does my neighbour have any right of way??? PLEASE HELP

Post by despair » Tue Jan 17, 2012 5:35 pm

Sadly this is simply the tactics of a bully

they will likely have been told they have no case by the other solicitors however they never believe anyone but themselves and are trying their luck again with a cock and bull story with another solicitor quite happy to take their money until proven wrong

i would be minded to fwd all new solicitors letters to the past solicitors and let the S*** hit the Fan
cos they may well not have been paid

Sudynim
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Re: Does my neighbour have any right of way??? PLEASE HELP

Post by Sudynim » Wed Jan 18, 2012 12:02 am

marley46 wrote:Does anyone know if I can get the previous land owner to make a written statement or something to prove that my neighbour has never been given a ROW?
You have been specifically urged to do that, eg UKMickey Thu Jun 23, 2011 9:04 pm above. Don't delay, he might emigrate or forget!

Sudynim
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Re: Does my neighbour have any right of way??? PLEASE HELP

Post by Sudynim » Wed Jan 18, 2012 12:04 am

despair wrote:Sadly this is simply the tactics of a bully

they will likely have been told they have no case by the other solicitors however they never believe anyone but themselves and are trying their luck again with a cock and bull story with another solicitor quite happy to take their money until proven wrong
This is facile speculation. The neighbour may have a perfectly sound claim, or a sincere belief that they have one. They are not helping themselves by changing lawyers instead of letting one firm see it through, but nothing so far in this story resembles 'bullying'.

despair
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Re: Does my neighbour have any right of way??? PLEASE HELP

Post by despair » Wed Jan 18, 2012 9:10 am

If the neighbour has a sound case they would hardly need to keep changing solicitors

one change if the solicitor is useless may be in order but not this many changes

Its when someone refuses to believe what they are being told that this happens

Like it or not thats the way Bullies behave and not just in Neighbour/boundary disputes either

I know of a case of a house that was in joint ownership where one owner died and for 15 years the other side refused to vacate or allow the sale and the bullying son tried the tactics of changing solicitors 4 times
In the end they had to pay not only their own solicitor costs but also those of the executor

marley46
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Re: Does my neighbour have any right of way??? PLEASE HELP

Post by marley46 » Wed Feb 15, 2012 6:13 pm

Hi All

Received another Solicitors letter today!! Letter with the neighbours Statutory Declaration.

Solicitors now state that if we do not acknowledge the clients right of way over our property and remove the padlock or provide the client with a key within 14 days, they are instructed to issue proceedings against us for an injunction and damages. The client will also seek to recover their legal costs from us.

What does this mean??? HELP getting worried now. Does this mean he is just going to take us to court?

Many thanks

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