ROW not on deeds of dominant tenement.

withreason
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ROW not on deeds of dominant tenement.

Post by withreason »

Hello,

Can anyone tell me if a ROW granted over 30 years ago which has not been used for well over 20 years, and is nowhere mentioned on the dominant tenement's deeds can be enforced?

The small parcel of land to which the ROW was given was originally used as a car park at the end of my drive, it remains part of the dominant tenements property on the deeds but is not attached to their property.

I realise this might be difficult but would appreciate some idea of what my rights are as the servient tenement.
Sudynim
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Re: ROW not on deeds of dominant tenement.

Post by Sudynim »

withreason wrote:Hello,

Can anyone tell me if a ROW granted over 30 years ago which has not been used for well over 20 years, and is nowhere mentioned on the dominant tenement's deeds can be enforced?
If it's existence can be proven, then it remains valid.
Conveyancer
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Re: ROW not on deeds of dominant tenement.

Post by Conveyancer »

Sudynim wrote:If it's existence can be proven, then it remains valid.
For all practical purposes true. However, as a matter of fact, either the right exists or it does not - whether the fact can be proved is neither here nor there.
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withreason
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Re: ROW not on deeds of dominant tenement.

Post by withreason »

Thank you Sudynim. Yes it can be proven as being on my deeds, and as Conveyancer states it does exist so does not need to be proven.

What I would like to know is the chances of it's validity being enforced given the length of time it has not been used.

Also, given the fact that it is not attached to the dominant owner's property nor is it needed as for approximately the last 28 years that I am aware of the dominant owner has had their own vehicular access to their property. The parking space was never meant as access to their property, but a place to park with access over the drive to the parking space and was given by the people who at the time owned both properties. I might add that the dominant property is not short of space, they have 1/3 acre with their house as well as a paddock adjoining which is I think 2.5 acres.

I wonder also why the easement is not mentioned on the dominant tenements deeds, can anyone give a reason for this? There is no evidence of the original documents having been destroyed in a fire.
hzatph
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Re: ROW not on deeds of dominant tenement.

Post by hzatph »

withreason wrote:What I would like to know is the chances of it's validity being enforced given the length of time it has not been used.
That is an impossible question to answer. If it is the only way to reach the land that is marked on their land registry entry and that yours can be easily downloaded and inspected to see that the right exists (if I interpret the posts correctly) then there may be some chance that they will discover it. Have you thought of buying the land concerned from them?
withreason
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Re: ROW not on deeds of dominant tenement.

Post by withreason »

hzatph wrote:
withreason wrote:What I would like to know is the chances of it's validity being enforced given the length of time it has not been used.
That is an impossible question to answer. If it is the only way to reach the land that is marked on their land registry entry and that yours can be easily downloaded and inspected to see that the right exists (if I interpret the posts correctly) then there may be some chance that they will discover it. Have you thought of buying the land concerned from them?
It is the only way to reach the parking space. Yes they could easily download our deeds, as I have done theirs, that is if the Land Registry finally get the numbering correct! That is being sorted due to my enquiries but the neighbours apparently didn't know their deeds were incorrectly numbered even though their solicitor had incorrectly told them they were the same number as us.

They wouldn't want to sell the land to us, the other neighbour who is between theirs and our property is using it and have fenced it off but they haven't bought it nor officially changed the deeds.. See my post in the boundaries forum.

The right of way issue is the only way I can prevent them as well as their friends from using it, and naturally we wish to prevent them from doing so as they have illegally moved a fence.
andrew54
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Re: ROW not on deeds of dominant tenement.

Post by andrew54 »

withreason wrote: The right of way issue is the only way I can prevent them as well as their friends from using it, and naturally we wish to prevent them from doing so as they have illegally moved a fence.
Does that make any sense? They are entitled to use the right of way and park there, with permission from the landowner. You have to allow this use.

If the fence is in the wrong place then deal with that problem.
withreason
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Re: ROW not on deeds of dominant tenement.

Post by withreason »

andrew54 wrote:
withreason wrote: The right of way issue is the only way I can prevent them as well as their friends from using it, and naturally we wish to prevent them from doing so as they have illegally moved a fence.
Does that make any sense? They are entitled to use the right of way and park there, with permission from the landowner. You have to allow this use.

If the fence is in the wrong place then deal with that problem.
It does make sense if the right of way is no longer enforceable. We have been parking our car in front of the parking space for at least 13 years and really have nowhere else to park it due to a too small garage and a very big tree which can damage our car. By moving the fence back to the position it has been in for over 30 years, in order for them to be able to use the space we would have to move our car. It would be a big cost to take down or increase the size of the garage to put the car in. As the roadway belongs to us it really seems a tall order to have to go to great expense to accommodate someone who is accommodating 'friends' at our expense. These 'friends' of the owner have pedestrian access via their property but they are made to feel they can't use it with the result they use our drive for any pedestrians including themselves. We were happy for them to do this, I like to accommodate my neighbours but they did not even discuss moving the fence with us. As soon as they both knew the drive belonged to us and not to all three properties they moved the fence within a few days. We were, prior to that, being quietly pushed so that they could equally use the drive with parking rights which they tried to establish. Quiet bullies are as bad as noisy ones, they will take advantage and they do know what they are doing. Spare a thought for the servient tenement who appears to have less rights than the dominant tenements, we are trying to keep within the law but they apparently think they can do as they please. IF they had done it legally I accept I would have had to let them move the fence IF they could establish where to move it to, as there is no measurement for length of space, and width is questionable as they have taken part of our land.

I will add that when the middle neighbour made the excuse that the end neighbour wanted to use their space to put a horse box on, and we were blocking the space, I offered to move the car if they really wanted to use it but I didn't know where I was going to put it due to the problems already given. This was before they knew we owned the drive, and they mentioned they were going to buy the land and move the fence which they did without buying it. Moving the fence would have made it difficult for the space to be accessed unless using their own access, but they said they would manage and no, no, we don't want you to have to move your car. It was all of course lies to put us under pressure to establish equal use of our drive. OK, so what you might say, demolish your garage, and OK, much of the above is probably not relevant. I say, not fair!
syckend
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Re: ROW not on deeds of dominant tenement.

Post by syckend »

Oh dear! Do you have legal expenses insurance? If you do you need to get help on some of these issues.

As others have pointed out the rule 'once a ROW always a ROW' is the one to follow. You cannot stop those with rights from using it.

You need to establish exactly where your boundary is and where the ROW is situated within it.Once you are sure of your facts you need to get the fence moved or dismantled but it seems to me you do need some help as these things can escalate alarmingly. Check for legal expenses as there are usually strict time limits and restrictions.
I advise as an experienced layman whose dispute via Courts lasted 5+yrs. Try to avoid this route©
withreason
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Re: ROW not on deeds of dominant tenement.

Post by withreason »

There has been further developments, not pleasant!

Two weeks ago I asked the middle neighbour, who moved the fence by the garage, on what legal grounds they had done this. The reply was they had moved it to their boundary, I made it clear that it was not their boundary as they had not purchased the parking space and it was illegal to do so without changing ownership and rights of way on all three deeds which they knew of course as they had previously mentioned it to me when I discussed the road and boundaries. As I had told them the road belonged to us, and the partner later seemed not to know this, it appears there has been a plan all along to do a land grab due to the impossible task of legally purchasing the parking space.

I had mentioned there was no measurement for length of the space given, apart from the fact it has to be done legally if at all. The reply was that they had a measurement, I know they don't, I was told it might be an oversight and we should compare deeds but not "this week" as they were working nights. That was a lie. Two days later I was asked if I had time to compare deeds, I went to the middle neighbour's garden where the end neighbour produced very old documents, not the current deeds of either. I was threatened in a very domineering manner that if I did not co-operate with them they were going to make life very difficult for me. I was accused of upsetting her "girls" i.e. the middle neighbours who are in a civil partnership. I mentioned my partner was having chest pains, they knew he had a serious heart attack two years ago and has 50% damage to his heart, her reply was if he has a heart attack then so be it.

NFH also told me the red line had been put in the wrong place by my solicitor, actually the drawing showing the ROW was from the original conveyance over 30 years ago when the one family owned all three properties and started to sell them, ours being the first to be sold with the drive included and a ROW given to the other two properties to two parking spaces at the end of our drive, and included in our property by a boundary fence which is the fence they have now moved. She insisted her drawing was a legal document even though it predates ours by approximately 6 weeks, when the owners had marked out the grounds with new fences as the grounds were previously as a whole. She also insisted that all three properties owned the drive although she couldn't produce evidence in her old outdated deeds other than the words written on the drawing stating joint ownership, well it would have been joint before they sold the properties as the same couple owned all three! She was extremely abusive, trying to completely destroy everything about me, a character assassination. She told me that if my partner has health problems then perhaps this is not the place for us to live, and maybe we should look for somewhere more suitable to live! Her abuse continued, I retaliated with raising my voice for the first time telling them I had been here for 14 years, it has been my haven, now they are making it my hell. I started back to my garden with her husband and granddaughter acting like the Adams family egging her on as she threw abuse after abuse, at which my partner heard and came to see them hounding me. NFH became quieter and started to tell my partner about the historical documents she has, she repeated to him her earlier suggestion that we move. He made one point very clear, if you have a ROW then you cannot own the road! I don't think they took that on board, NFH had told me a ROW meant we could all walk over the drive, it's clear they have no idea.

Another two days passed, my partner was having trouble coping with what had happened so I made an appointment to see his doctor. I then rang the police to report harrassment. We were visited, he could see clearly that we owned the drive but of course he can't advise legally. He visited both neigbours, they of course were in his words on his follow-up visit "reasonable people", they were not going to tell the police they are bullies! NFH had also told me they had a ROW through the back gates next to the houses with access across our garden, it's not mentioned on our deeds and no ROW at all are on the end NFH's deeds. The morning after the police visit a man loudly stomped down our path, going to the middle house. On the follow-up visit by the policeman I mentioned this, he said she told him about the ROW but she had told him she wasn't going to abuse it! The incident has been recorded with the police, I also requested that they are not allowed to speak to me unless through a solicitor. NFH is in her late 60's, her husband over 70.

It's now two weeks since asking the neighbour to move the fence back, they obviously won't be doing that. As it has been illegally moved and they have two feet of ours, I believe I am within my rights to take the posts out and return the fence undamaged to them. I was going to get legal advice but am reluctant to start that ball rolling as I know how costs can spiral, I recently retired and am on the minimum pension although this is a good deal more than we previously had to live on, I also still have to pay a mortgage and do not want to give solicitors anything as I have seen that in the end nothing is resolved without going to court which is frowned upon, and can cost huge amounts of money.

My research has given me some hope that I could, with luck, gain the parking space, which is now fenced off, by adverse possession. The law is very complicted though, so if anyone could make some points clearer I would very much appreciate it. I need to move the fence first though.

I found a pdf which outlines some helpful insight into the legalities of a ROW.


http://www.parkcourtchambers.co.uk/semi ... arking.pdf

Paragraph 19:
"It has however been accepted
that if the dominant owner has covenanted to pay all or contribute to
the cost of maintenance, he is not allowed to use the way unless he
pays it"
Nobody has maintained the drive since we have been here other than ourselves, and the owner of said parking space won't have even used it for around 28 years. The previous owner of the middle property had someone mow the grass on the drive in the last few months before it was sold, that is all, and I believe she did this to prove she had contributed to maintenance as she knew she was selling. The current owners of the middle property have not contributed to maintenance in the 18 months they have been here, it is in our deeds that maintenance has to be shared equally. The drive has a well compacted layer of gravel, but we had to buy a new mower to cope with such a drive as well as pay the cost of petrol ourselves, nobody has offered to share this.

Can I presume that at least the end neighbour who has not used the drive has lost their right of use?

Paragraph 11:
It was also held in Macepark that the principles applied in the same
way whether or not the non-dominant land was in the same ownership
as the dominant land (and see Alvis v Harrison (1990) 62 P&CR 10).
On the facts in Macepark, it was held that the dominant owner could
not use the right of way for the benefit of land other than the dominant
land.
From that, it appears to me that the middle neighbour has no right to use the end neighbour's parking space, even if they had purchased it from them. i.e. the parking space runs with the land, it is a contractual right and not a personal right. They are treating it as a personal right which, in a nutshell, has messed up our deeds and devalued our property.

You may now see why I wish to try to gain the parking space by adverse possession so I can put a stop to their harrassment. We have actually personally had the required 12 years possession, that was beofre the new owner of the parking space had purchased. I am confused however about the rules concerning the cross over dates as changed by the LRA 2002, it appears to suggest the 12 years had to be before a date in 2003 which is the case but with previous owners of our property who I doubt I could find. As the middle neighbour dumped a load of stuff on the space around the time they moved in 18 months ago, and moved the fence to enclose both spaces nearly 10 months ago, does this have the effect of cancelling our 12 years possession even though it was done illegally?

There is also the question of unregistered v's registered, I doubt the land was registed until the end neighbour bought which is less than two years ago, the previous owner had been there well before registration was required. Our 12 years possession should therefore have been during a period where the land was unregistered, does it make a difference having since been registered or is adverse possession still possible using the unregistered method?
hzatph
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Re: ROW not on deeds of dominant tenement.

Post by hzatph »

You may not like my first comment which is at all costs to avoid getting into a slanging match or raising voice with NFH - it just fuels them and escalates things, particularly if they are setting out to provoke you and your partner. Discretely keep notes of all NFH encounters for a few weeks perhaps to build up evidence of harassment but expect them to allege the reverse about you if it goes formal.

I think you will get nowhere on the costs issue - if you have not asked for maintenance then one can hardly criticise them for not having paid. In any event the language used in document helpfully cited is of "repair" - I would need to be convinced that this concept included things like cutting the grass unless this was essential to be able to use the ROW.

Have you checked that you do not have legal insurance? You cannot force them to use a solicitor to represent them.
withreason
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Re: ROW not on deeds of dominant tenement.

Post by withreason »

hzatph wrote:You may not like my first comment which is at all costs to avoid getting into a slanging match or raising voice with NFH - it just fuels them and escalates things, particularly if they are setting out to provoke you and your partner.
I realise this, and I assure you I kept my calm until there was so much noise from them if I had not raised my voice I would not have been heard, it was a 'controlled' raising of the voice. As I am no longer speaking to them, and they have been told not to speak to me, this will not happen again. It is impossilbe to reason with such unreasonable people.
Discretely keep notes of all NFH encounters for a few weeks perhaps to build up evidence of harassment but expect them to allege the reverse about you if it goes formal.
I do convey all that is happening to a friend on a site which provides a private mail facility, these mails are not editable.
I think you will get nowhere on the costs issue - if you have not asked for maintenance then one can hardly criticise them for not having paid. In any event the language used in document helpfully cited is of "repair" - I would need to be convinced that this concept included things like cutting the grass unless this was essential to be able to use the ROW.
The deeds state:
the said driveway to be maintained at the joint and equal expense of the respective owners of numbers A, B & C aforesaid as shall be entitled to use the same as aforesaid
I'm not sure about this, but it would make sense if they wanted to use it the onus should be on them to make sure they contributed. NFH actually mentioned she wouldn't be using it as she didn't want to pay for maintenance.
Have you checked that you do not have legal insurance? You cannot force them to use a solicitor to represent them.
I have checked, my Building Society insurance call it a dispute which they don't cover even though alteration of fences is included, and fences are classed under buildings. I am aware I cannot force them to use a solicitor, this means effectively they cannot communicate with me at all unless they do use a solicitor, as requested by the police. I doubt the police would have given us this choice if they had not taken it seriously.
mr sheen
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Re: ROW not on deeds of dominant tenement.

Post by mr sheen »

[quote="withreason
It does make sense if the right of way is no longer enforceable. We have been parking our car in front of the parking space for at least 13 years and really have nowhere else to park it due to a too small garage and a very big tree which can damage our car. By moving the fence back to the position it has been in for over 30 years, in order for them to be able to use the space we would have to move our car. [/quote]

Just because it inconveniences you to park elsewhere you cannot obstruct a ROW.
The ROW exists so can be used, it is irrelevant that it is not on their deeds, it's on yours. They can allow who they like to use their parking space and hence the ROW to it.
The maintenance matter is pretty irrelevant since it only has to be maintained 'fit for purpose' as a ROW and well compacted gravel sounds fine for a ROW. They only have to contribute to 'maintenance' of the surface such as repairing pot holes etc. so mower petrol etc is not relevant.
withreason
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Re: ROW not on deeds of dominant tenement.

Post by withreason »

mr sheen wrote:[quote="withreason
They can allow who they like to use their parking space and hence the ROW to it.
What then do you say to this?
It was also held in Macepark that the principles applied in the same
way whether or not the non-dominant land was in the same ownership
as the dominant land (and see Alvis v Harrison (1990) 62 P&CR 10).
On the facts in Macepark, it was held that the dominant owner could
not use the right of way for the benefit of land other than the dominant
land.
As already stated above, it appears to me that land ancillary to their own is not legally accessible via their own right of way. From what I have found elsewhere, the right of way to the parking space can only be used, with permission from the owners, by visitors, tradesmen, family etc. for the purpose of their own property That is, it is meant for the use of people visiting the dominant owner with their permission and not a resident neighbour who happens to have an adjoining parking space. It "runs with the land" for that property only. I believe this to be correct, if not please show me the evidence as I have not found any documents which allow this use.
Roblewis
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Re: ROW not on deeds of dominant tenement.

Post by Roblewis »

It seriously sounds as though the middle neighbour is attempting to grab land as well as blocking the RoW. You do really need some good legal advice here
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