Back again

Jerseymum
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Back again

Post by Jerseymum »

it's been a while, but I'm back.
We though the ROW thing had been settled when our insurance company agreed to take it up but then, just as we were gearing up to get the stuff sorted, they found that our lawyers had mentioned the ROW issue during the purchase so they dropped it like hot rock.
Nevermind: now we're having to do it ourselves.
Anyway, we'd got to the stage where everybody except one neighbour had agreed that the ROW existed and the only set of deeds belonging to any property along the ROW that specifically mentions the ROW is our own and the people whose garden we have to traverse to get to the ROW. We have land registry documents showing that no property extends over the ROW. We also have old deeds for our property that show the problem neighbour's boundary ends at the ROW and he is responsible for the maintenance of the boundary.
Last week, we sent letters to owners of all gardens along the length of the ROW stating our intent to clear it. The one who has fenced it off came and told us he wouldn't let us, that his lawyer had said it wouldn't be a problem when he bought the house.
He then said it was to protect his property and the property of our neighbours that he had done it and that if we moved his fence the security of our property would be in danger.
When we mentioned that it was our right of way and even if he had adversely possessed the land we still had the ROW, and we needed it for issues like sewer access, he said 'censored happens' and that no water board would be able to do any sewer work over the length of the pathway.
We are, this week, writing another letter re-stating that we will be opening the ROW with consent of neighbours who got back in touch with us, implied consent from those who didn't and objections from the problem neighbour.
Is it worth throwing in that we would give up the ROW if he were willing to pay recompense and legal costs? Because he is, basically, a bully who wants something for nothing.
Tied up in this is that we recently lost a house sale because we declared this problem and a knotweed infestation that needs treating via access along the ROW (as we are legally obliged to) on our sale information. Could we throw in liability for that loss and associated costs plus the cost of any future sale withdrawals as a lever?
Any further advice would be greatly appreciated.
Sarah
Jerseymum
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Re: Back again

Post by Jerseymum »

I've just re-read earlier replies to previous posts: had forgotten what great ammunition you lovely people had posted there.
arsie
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Re: Back again

Post by arsie »

Jerseymum, would you try to get a diagram up here? Also I suggest you make this thread stand alone, so we don't have to refer back to (and keep remembering) your previous threads. I too had trouble attaching stuff but being retired I had time to play about until I found something that worked, as I couldn't find anything in the Help and FAQ facilities.

It won't allow .DOC or .PDF files but I found that you can attach .JPG files but of no more than 256kB in size. So, if you scan plans or diagrams, depending on your software you might need to change your settings. My Epson Scan software was set to PDF so I had to change to JPG and scan at quite low resolution. Even then I had to make the diagram smaller and had to crop it to get within the size limit. See here: http://www.gardenlaw.co.uk/phpBB2/viewt ... 11#p165141 That image started life as a Word document .DOC made with Word's drawing tools, which I then printed off, scanned in to create a .JPG file, then I used the Office Picture Manager to crop the image down to about 50kB.

If you do a freehand sketch make sure to keep it fairly small say postcard size or less and use black ink. That way you can set a low resolution scan and still get a clear enough picture. Once uploaded you get the option to imbed in your post.

There may be other ways but that's what worked for me :)
Jerseymum
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Re: Back again

Post by Jerseymum »

Thanks: will see what i can do about a diagram
Jerseymum
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Re: Back again

Post by Jerseymum »

Is that any help? i think there's an attachment to the post. If not, let me know and I'll keep trying
We are 34 and our deed states that 'together with the right of way in favour of the purchaser or the owner or owners occupiers or occupiers for the time being of the property hereby conveyed and all persons duly authorised by them over the rear of the adjoining property no 36_______ aforesaid over the rear of the garden path three feet wide at the rear of the said property as a means of access to the rear of the property hereby conveyed and to the garden ground belonging thereto' and shows the pathway outlined in the dotted line leading to the communal path. No. 30 has fenced off the communal pathway and claims there is no right of way on his deeds, but then, he neither owns the pathway so our right of way is not on his deeds nor has he any right of way over it according to his own legal documentation.
Even if he has adversely possessed the land (which land registry records say he has not) our ROW still stands, yes?
You do not have the required permissions to view the files attached to this post.
arsie
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Re: Back again

Post by arsie »

Well done that works and a picture tells a thousand words doesn't it just :)

In my view as a non expert you appear to have a solid case. A right of way doesn't have to appear on every adjacent deed to be perfectly valid. The advice to re-open the right of way is sound though perhaps you should get someone big and ugly to 'do the deed'. But first have you checked the deeds for no 30 to see what they say? Who owns the pathway if anyone?

Now you have found that your legal costs support has gone, you do need to realise that pursuing this through the courts will be expensive. There is always a risk of losing. Does either of no's 32 and 36 have legal cover and is either of them prepared to play the lead role? They would both be affected if the access continues to be blocked and the value of their properties will be reduced without the right of way. Any prospects of selling, should they wish to do so, with this dispute on-going will be affected. You did say that you were prepared to give up the right of way: what about the others?

Not the same as your situation but here is an example of a successful civil action with a right of way involved ... http://www.gardenlaw.co.uk/phpBB2/viewt ... f=9&t=2001

edit: and here is a post on this same sub forum where rights of way don't always appear on all affected properties ... http://www.gardenlaw.co.uk/phpBB2/viewt ... 98#p165190

Read pilman's explanation of how, once upon a time, every house had to have back access for coal deliveries and how it could be that the actual passageway might remain unregistered in the ownership of the vendor but be essentially worthless to him. Depending on circumstances at the time of sale possibly not every property would have an explicit right of way. In your situation, the unscrupulous owner of no 30 is - wrongly - claiming the passageway outside his garden as his own. In time he could gain ownership either by adverse possession or through prescriptive (long term) use. A right of way should prevail, whoever owns the land, but to enforce it you might have to go to court.

Pilman may be along to help you much more than my inexpert opinion can.
Jerseymum
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Re: Back again

Post by Jerseymum »

Pilman has been a great help when I posted about this a few years ago.
As for 'selling' our ROW that is something I'm tongue-in-cheek putting in the letter to the owner of no. 30. We notified all our neighbours, last week, that we intend to open the ROW this coming weekend: my hubby is big and ugly enough to deal with a bully, and I'm also going to speak to the CAB on Tuesday and the police as we registered a call to them on a previous occasion when no.30 was abusive. I will be making it clear that we do not expect the police to open our ROW, as that is a civil matter, but that we may be expecting no. 30 to 'kick off' when we begin the work.
We recently lost a sale due to this ROW issue and a knotweed growth that was concealed from us when we bought. The knotweed specialist says that they will need to access the growth via this ROW and he was very sure that the set up is, as you say, an old coal path and the only reason it is mentioned on the deeds of ourselves and no.36 is that we were the only properties in the terrace without access to the rear from the main road in front: all our sewers are accessed to the rear of the property and I am waiting for confirmation from Severn Trent Water and OFWAT as to what their take on restricted utility access is as I firmly believe the more legal gumph we can arm ourselves with, the better.
We tried to do this nicely, and in the last three and a half years, he is the only one who has kicked up a stink I suspect because he is the only one who is doing anything wrong.
When we notified neighbours of our intent to open the ROW, we mentioned that we were allowed to remove obstructions and he came back with a letter telling us that his lawyer had said it wouldn't be a problem when he bought, but I know of no lawyer who gives legal guarantee on a word-of-mouth basis and no. 30 has failed to produce any written document to back him up. He swings between 'you can't do it because it's my land', which it is not, and' you can't damage my property', which we would not be doing as we are simply removing badly-fixed fence panels and clearing 3 foot of overgrowth, both only there because of his obstruction of the ROW.
The owner of 32 is an old lady and is handing copies of all documents to her lawyer, but is happy for us to go ahead and open the way as her land is threatened by the knotweed, also, and she wants it treating. No.36 treats his property as a cash cow and doesn't care as long as his tenants don't do any damage to the building.
No. 30 has been round talking to people in the last week and is very keen to tell us what they think, but nobody other than no. 32 (keen for us to proceed) and no.30 (preventing us from doing the work) have responded to our letter, in which we made it very clear that we have checked deeds with the land registry and that they are not the registered owners.
Any other suggestions? Threaten him with legal action because he is preventing us dealing with our knotweed issue? Get some burly mates round to help hubby shift the fence?
arsie
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Re: Back again

Post by arsie »

Sounds to me like you have it all covered.

Perhaps one last note to no.36 asking for his support and saying perhaps he has not realised the value of his property (both for sale or for renting) may be affected if your knotweed is not treated effectively, which requires access to all the land you share at the rear, for bringing in tools and taking away possibly contaminated waste (As a matter of curiosity, do you have any idea where the knotweed rhizomes lie? Possibly could be under his buildings too, you may have been advised :wink:)

Did you find out if anybody owns the passage? Of course it could be unregistered land still.

Burly mates: good idea. Bullies are usually cowards.
Jerseymum
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Re: Back again

Post by Jerseymum »

Arsie, we still have no idea who owns the path. It is still unregistered and we've checked all the deeds of houses bordering the path and none of them mention the path: ours and 36 are the only ones who mention the ROW.
He swings between claiming he owns all the stuff he's fenced off (his garden + the 3ft access path over which our ROW passes) and 'I only fenced it off to secure my property/the person I bought it from fenced it off for this reason' in which case, as you are responsible for the boundary that meets the path, erect a fence.
Another neighbour (who he doesn't talk to because she is friends with us) has just rung to say that he has a man with a clipboard looking at the fence. Maybe he's realised his bluff has been called and he's going to move it. :lol: Yeah, i doubt it!
I'm amazed that he has gone round and talked to people, individually, telling each a different thing, when we all our correspondence has been to everyone. It's typical bullying behaviour. I've kept a log over the last three-and-a-half years and there are so many inconsistencies in what he has told us and incidents where he has trespassed on 36's land in order to block access to the ROW, and dumped rubbish and old fencing on 32's land.
I think we have been reasonable for too long, but I'm tired of having our legal holding with-held from us in this way.
Sarah
arborlad
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Re: Back again

Post by arborlad »

arsie wrote: Also I suggest you make this thread stand alone, so we don't have to refer back to (and keep remembering) your previous threads.

On the contrary, I think this thread would be better merged with whatever of the OP's other threads is most relevant.
arborlad

smile...it confuses people
arsie
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Re: Back again

Post by arsie »

Ok Sarah I was just making sure you had tried to find the path's registered owner :)

I do agree the time for words is past. Others such as pilman are far more knowledgeable than I, but from Yahoo! answers:
You and the neighbours have a right of way under the deeds and indeed by common law. There's no point in removing the obstruction because he'll just put it back. What you need to do is this, sequentially only moving to the next step if the previous one fails;

1. Ask him nicely to move it.

2. Ask him as a group of neighbours to move it because it's unlawful

3. All the neighbours instruct a solicitor and send him a strongly worded letter. Any decent local solicitor should be able to do this pretty cheaply.

4. Issue a claim at your local county court for a declaration and injunction. It should be pretty modest cost even if it went to to trial (which I doubt) and the loser pays anyway.

He'll lose and with a bit of luck will move because you've got a charge on his house to pay the legal costs.
Solicitors advice costs money of course. I would give him 14 days in your letter (step 2) to remove the obstruction. By the sound of it you can count on no 32 and it would be useful to have no 36 on board and he might be persuaded if he realises that not having the right of way would affect his pocket. Or include him on the letter by default (he hasn't said 'no'). The nasty neighbour's excuse of needing security he could achieve by putting a fence along his boundary with the path and not by enclosing the path.

Roger

RC my initials = Ah see = Arsie phonetically. I am really not arsie but just meek and mild ;)
Jerseymum
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Re: Back again

Post by Jerseymum »

Just a query: finger in the wind.
How much would an injunction cost?
Sarah
arsie
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Re: Back again

Post by arsie »

These people http://www.injunction-direct.com/about-injunctions.html will do it for a few £hundred or less depending how much hand holding you require. item 3 above is a 'letter before action' (LBA).

This is the page with a link to the form N16a which you fill in and submit to your local court for an injunction with your evidence: http://hmctsformfinder.justice.gov.uk/H ... rms_id=402

I can't seem to find a price and I think you will have to contact your local county court. They are helpful if you call in person I have found. I don't think the fee will be huge. It looks like the sort of thing I would have a go at myself having successfully used the small claims court service a couple of times.

Roger

edit: Just noticed no 28's parking. Do they drive in over the passage (right of way) or from the road?
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Re: Back again

Post by pilman »

they found that our lawyers had mentioned the ROW issue during the purchase so they dropped it like hot rock.
What exactly did your lawyers mention because I would have insisted that you now be represented if you have legal cover.
Did your lawyer tell you that the right of way was already obstructed before you bought the property?

The fee for an emergency injunction is £150 and the words on the register of title are sufficent proof to any court that you have a Legal Interest over the land shown on the plan, so that evidence that a fence has been erected to prevent access over that path, which is a substantial obstruction and a trespass against your Legal Interest in land which should result in an injunction being granted.
Then there will need to be a hearing when damages will need to be claimed because of the unlawful and deliberate interference with your Legal Interest.
Jerseymum
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Re: Back again

Post by Jerseymum »

Nobody told us the ROW was blocked when we bought. We knew that 36's garden was badly overgrown, but our vendor had had a surveyor fight to the back and put in a blue rope on sticks to show where the path existed at the rear of 36's land.
We have had almost 4 years of this man shouting at us, telling us lies, trespassing on 36's land to block the access gate.
He drives over the ROW he purchased from 28, but refuses to acknowledge our right to pass, on foot, over something that we also legally purchased.
He is not a nice man and because we have been honest about him having blocked the footpath and the knotweed which we will be unable to treat without the ROW we cannot sell our property and move to Yorkshire in order to live with my husband and I'm probably going to cry, now.
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