right of way on title register not accepted and blocked

pilman
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Re: right of way on title register not accepted and blocked

Post by pilman »

In case you are not familiar with certain legal terms, once you had purchased the property from the council you owned the "Legal Estate" in the physical property and you owned a "Legal Interest" over the retained land of the council in respect of all easements that existed when the council owned both properties.

That fact was set out explicitly in the transfer.
the right to pass and repass at all times and for all purposes over and along any existing passageways upon neighbouring property that have hitherto been used by the buyer and laid out for the purpose of gaining access and egress to and from the property on foot only (in respect of routes designed to be used on foot) and with vehicles if designed for vehicles in common with the others entitled to share use of the same
if access and egress to the property cannot be obtained directly on to a public highway the right to pass and repass over any intervening land retained by the council to gain access and egress to the public highway by the same route and in the same manner as the buyer has used hitherto in particular but not Ltd to the route
all statutory easements over neibouring property that benefit the property
where the use of any means of access is shared between several persons those persons shall not unreasonably obstruct or hinder the full and free use of others entitled to use the same
the property is sold subject to all existing encumberences
Amongst these easements were such Legal Interests as having your water, sewage, gas, electricity or phone lines passing under or over the retained land, but also the right of way to pass and repass aross the council's retained land using the route that existed when the sale of the property was completed.

Your Legal Interest is not a matter for mediation. It is an absolute legal right that is part of your property.

The Housing Association and your neighbour are causing a substantial obstruction by placing a padlock on the gate and if Gateway have provided their tenant with the means to obstruct your Legal Interest over their land, then an Injunction should be applied for as soon as possible.

That is the initial process, but a full trial will then be necessary to decide matters of law.

The facts are clearly on your side, but you will need to understand how much money it may cost you to take the matter before the court unless Gateway back down prior to any formal court hearing being needed.

Your claim will be to have your right of way fully reinstated and left unobstructed, together with a claim for damages, because there has been a legal nuisance committed against your Legal Interest in land, which is an absolute property right.

See Law of Property Act 1925 Section 1
1. Legal estates and equitable interests.
(1)The only estates in land which are capable of subsisting or of being conveyed or created at law are—
(a)An estate in fee simple absolute in possession;
(b)A term of years absolute.

(2)The only interests or charges in or over land which are capable of subsisting or of being conveyed or created at law are—
(a)An easement, right, or privilege in or over land for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute;
beeffyp
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Re: right of way on title register not accepted and blocked

Post by beeffyp »

pilman wrote:In case you are not familiar with certain legal terms, once you had purchased the property from the council you owned the "Legal Estate" in the physical property and you owned a "Legal Interest" over the retained land of the council in respect of all easements that existed when the council owned both properties.

That fact was set out explicitly in the transfer.
the right to pass and repass at all times and for all purposes over and along any existing passageways upon neighbouring property that have hitherto been used by the buyer and laid out for the purpose of gaining access and egress to and from the property on foot only (in respect of routes designed to be used on foot) and with vehicles if designed for vehicles in common with the others entitled to share use of the same
if access and egress to the property cannot be obtained directly on to a public highway the right to pass and repass over any intervening land retained by the council to gain access and egress to the public highway by the same route and in the same manner as the buyer has used hitherto in particular but not Ltd to the route
all statutory easements over neibouring property that benefit the property
where the use of any means of access is shared between several persons those persons shall not unreasonably obstruct or hinder the full and free use of others entitled to use the same
the property is sold subject to all existing encumberences
Amongst these easements were such Legal Interests as having your water, sewage, gas, electricity or phone lines passing under or over the retained land, but also the right of way to pass and repass aross the council's retained land using the route that existed when the sale of the property was completed.

Your Legal Interest is not a matter for mediation. It is an absolute legal right that is part of your property.

The Housing Association and your neighbour are causing a substantial obstruction by placing a padlock on the gate and if Gateway have provided their tenant with the means to obstruct your Legal Interest over their land, then an Injunction should be applied for as soon as possible.

That is the initial process, but a full trial will then be necessary to decide matters of law.

The facts are clearly on your side, but you will need to understand how much money it may cost you to take the matter before the court unless Gateway back down prior to any formal court hearing being needed.

Your claim will be to have your right of way fully reinstated and left unobstructed, together with a claim for damages, because there has been a legal nuisance committed against your Legal Interest in land, which is an absolute property right.

See Law of Property Act 1925 Section 1
1. Legal estates and equitable interests.
(1)The only estates in land which are capable of subsisting or of being conveyed or created at law are—
(a)An estate in fee simple absolute in possession;
(b)A term of years absolute.

(2)The only interests or charges in or over land which are capable of subsisting or of being conveyed or created at law are—
(a)An easement, right, or privilege in or over land for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute;
Wow pilman You The Man, you have just given me so much more information than my solitor has done in three weeks, thankyou :D

I will be asking my solicitor to stop communicating with gateway and to immediately apply for an injunction against gateway and their directors if possible.

I'm prepared to take it all the way possible if I knew 100% that I'll win. Does anyone have any ideas of costs approx and would I get it back if I win.

When you say I can claim damages do you mean financial? ( like suing for compensation) if so really?
If any of you experts was in my position what would you do?

Again any advise on costs just an approx figure will do.

Many many thanks everyone
stufe35
Posts: 968
Joined: Mon Nov 05, 2012 3:06 pm

Re: right of way on title register not accepted and blocked

Post by stufe35 »

I will say it again. You need a SPECIALIST RIGHT OF WAY SOLICITOR.

Your case is straight forward, you are right they are wrong, you shouldn't need to incur the cost of an injunction, one well written letter from a solicitor should be enough to scare them off if they have any sence at all. As soon as they go for legal advise on your letter their solicitor will tell them to back off.

If not its injunction time.

can't advise you on costs as never got as far as injunction in my case, we took advice from a ROW solicitor and wrote our own letter. It worked as above,we got one letter of bluff from their solicitor (you should be aware solicitors will try to bluff ) to which we again replied ourselves, after that the obstruction was moved and we heard no more.

Read my earlier post

You need a specialist row solicitor to help you through this.
despair
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Re: right of way on title register not accepted and blocked

Post by despair »

DITTO
Both your neighbours and Gateway are being bullies
Get a solicitor who truly knows ROW
arborlad
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Location: Hertfordshire

Re: right of way on title register not accepted and blocked

Post by arborlad »

beeffyp wrote: We have contacted the solicitor who did the conveyancing for us when we purchased the property , he has made contact with gateways solicitors and is suggesting we go for mediation. Gateway's solicitors are investigating the history and usage of our right of way.
I'm wondering why the solicitor didn't immediately go for a strongly worded letter to Gateway to resolve the situation.

The way the properties are laid out and used, gates, fences, paths etc., are all fairly normal - nothing exceptional.

The way the deeds are worded, again, fairly normal - nothing exceptional.

The solicitor, who has presumably had sight of both sets of deeds hasn't taken the action one would expect under the circumstances, I'm left wondering why.
arborlad

smile...it confuses people
COGGY
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Re: right of way on title register not accepted and blocked

Post by COGGY »

Have you googled the solicitors in your area? One may advertise expertise in rights of way. If not try phoning and asking to speak to a solicitor who specialises in rights of way. When you speak to them you will have an idea of whether they are good or not in this area. Your solicitor sounds to be a waste of space. Any letter send needs to be direct to the point, no waffle. Your solicitor does not sound to be capable of this. A hard hitting letter is what may save the cost of an injunction. I have no idea of the costs, but again you may get some idea from google. Good Luck. Be Firm.
Roblewis
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Re: right of way on title register not accepted and blocked

Post by Roblewis »

Gateway will have their own solicitors on board of their payroll no doubt so I think the idea of your solicitor writing will not cut it unless he is direct and gives a specific time for seeking the injunction.

By the way neither the history or usage of the RoW is relevant - it exists because it is documented in the deeds and so a route marked on the title plan is irrelevant. Gateway could argue for a defined route to be agreed but not that there is NO route
pilman
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Re: right of way on title register not accepted and blocked

Post by pilman »

telling us they are moving our Row to the bottom of the garden with a 6ft high fence to make it like an alleyway
I referred back to this quote which was in the first posting made.

The council sold you the Legal Estate in the land that comprised the physical house and garden.
The council sold you the Legal Interest over their retained land which was clearly identified as the end-terrace house over which the right of way had always been exercised.

What has to be realised is that when these typical terraces of four houses were designed there always had to be a direct route from the public highway to the back gardens primarily because of coal deliveries and window cleaning purposes.

Ever since Victorian days houses were designed to allow direct access to back gardens for coal deliveries and in this type of short terrrace it was accepted that there would be a right of way over the end terrace house for the benfit of the inner terrace house.
If the houses were numbered 1, 2, 3 & 4, then at one end of the terrace No. 1 would have the "burden" of the right of way and 2 would have the benefit of the right of way, whilst at the other end of the terrace No. 4 would have the burden and No. 3 the benefit.

What also needs to be understood is that when Schedule 6 of the Housing Act 1985 set out the procedure to be followed when a sitting tenant of a council house exercised the right to buy that was granted by that Housing Act, all easements in use whilst the houses were in common ownership of the council had to be passed with each conveyance.
That was an obligation imposed on the Council as Transferror by section 3 of Schedule 6 of the Housing Act 1985.
Rights of way
3 The conveyance or grant shall include—

(a)such provisions (if any) as the tenant may require for the purpose of securing to him rights of way over land not comprised in the dwelling-house, so far as the landlord is capable of granting them, being rights of way that are necessary for the reasonable enjoyment of the dwelling-house; and
(b)such provisions (if any) as the landlord may require for the purpose of making the dwelling-house subject to rights of way necessary for the reasonable enjoyment of other property, being property in which at the relevant time the landlord has an interest, or to rights of way granted or agreed to be granted before the relevant time by the landlord or by the person then entitled to the reversion on the tenancy.
The route of the right of way was to be that route that was in use when the houses were in common ownership and the burden of that particular route cannot be changed at the whim of the current servient land-owner.

In case that phrase is not clear, the Dominant land is that with the benefit while the Servient land is that with the burden. One serves the other.

You own the dominant land so can insist on access over the land designated as the specific route of the right of way.
Your Legal Interest over that land in the servient tenement should be protected at all costs, as that is a valuable property right recognisd in law.

If the route was to be changed there would need to be a deed of extinguishement signed by all parties.
That would include any mortgagee, as well as the owners of the dominant tenement and the servient tenement.
Then a new deed of grant would need to be signed by the owner and mortgagee of the servient tenement granting a right of way over the new route to be agreed by all parties.

That often requires a payment to the dominant land owner to secure their agreement to the change, because the change will be for the benefit of the servient land-owner who intends to use their land in a different way.
Normally all legal costs of creating these deeds falls on the servient land-owner who pays your solicitor's fees as well as their own.

I just feel that the more you understand about the situation you find yourself in, the easier it will be to see if the solicitor you instruct grasps the full implications of what Gatweay are doing.
They are creating a legal nuisance by denying you the legal property right over their land that you bought from the council when they owned that land.

Gateway is attempting to deprive you of a legal property right that you bought from the council who was compelled to include that right of way when they transferred the land to you.

When Gateway acquired the remaining land belonging to the council, whenever that occured, the Housing Association acquired every legal burden on each individual property, as well as acquiring any legal interest over land already sold by the council.
That is what happened at the other end of the terrace with the privately owned end-terrace property being the servient land with a right of way benefitting the Gateway property which is the mid terrace house.

In my opinion any letter addressed to Gatway should be emphatic in setting out the legal nuisance that is being deliberately orchestrated against your property.
That requires an immediate removal of all obstructions, failing which an emergency injunction will be applied for, with a claim for a permanent injunction following a claim for nuisance and damages based on the trespass over your legal interest in land which has been correctly recorded in the register of title since the house was transferred by the council in 1996.

There cannot be a valid defence to any such claim, which is what any competent solicitor should be able to tell you.
Roblewis
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Re: right of way on title register not accepted and blocked

Post by Roblewis »

Pilman

Beautifully and well put. The HA need to be brought to task.
despair
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Re: right of way on title register not accepted and blocked

Post by despair »

Pilman is spot on
as is Rob Lewis

The OPs Solicitor needs to sort this fast at no cost to the OP
or the OP needs to find a solicitor who does know what he is doing
stufe35
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Re: right of way on title register not accepted and blocked

Post by stufe35 »

Pilman your knowledge is invaluable on this forum.
beeffyp
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Re: right of way on title register not accepted and blocked

Post by beeffyp »

Pilman you have understood my situation to a T and i agree your knowlege and wording is so perfect you are an asset to this site. I have taken your advise and the advise of others on board, I will keep you all posted as things progress.
My mind boggles as to why gateway would put themselves in this vulnerable position, given that financially they will be out of pocket and an embarrassing defeat ensues.
I wonder how many other people this has happened to and given up. Well with people like pilman, rob, coggie, despair, duvet just to name a few behind me gateway have had it.

Thank you all once again
COGGY
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Re: right of way on title register not accepted and blocked

Post by COGGY »

Gateway have done it because they thought they could get away with it. They are a big Company and banked on you giving up. Pilman is a star and has explained everything so well.

I am sure there are many cases in life where the bully (Gateway) gets away with things because the innocent person (you) believes there is nothing they can do, or are simply worried about the cost. They believe the bully.
stufe35
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Re: right of way on title register not accepted and blocked

Post by stufe35 »

Well put COGGy, that is precisely my belief...when Gateway are met with a properly written letter stating the facts and the law, they will back down because they will know they are destined to lose and incur costs if they take it further.

The problem for the OP is how to achieve it at minimum cost to themselves.

I achieved it with a letter written by myself, but following advice on the law and our situation from a specialist ROW solicitor, I achieved free access to this solicitor by joining an organisation whose benefits are access to a group of solicitors. Membership of the organisation is £150 a year (ish) but I have access to the legal advice as and when I need it...as my neighbour just tries one thing after another.

Bullies the lot of them , but when faced with a will written letter of fact in my experience it all goes quiet...for a month or two till the next trick.

Unfortunately this is the nature of NFHs...they can make life very uncomfortable on a daily basis whilst remaining within the law. But ultimately good wins.
arborlad
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Re: right of way on title register not accepted and blocked

Post by arborlad »

beeffyp wrote: access and egress to the public highway by the same route and in the same manner as the buyer has used hitherto in particular but not Ltd to the route[/b]
.

I'm wondering if this term has any significance: 'but not Ltd to the route'
arborlad

smile...it confuses people
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