Jerseymum wrote:Have been to CAB: spent three hours there and at the planning department (who will not remove his fence because it is over 4 years old). CAB have made me a free solicitor's appointment for next Wednesday morning because I have no written record of my conveyancing solicitor mentioning the ROW, and looking back through my notes, the Home Insurance claim (I just checked) was refused NOT because of the ROW being mentioned at purchase, but because records, leading our claim was so very close to our beginning to pay for the cover. I may well have a claim for misrepresentation by the vendor/crap solicitor, but we just want it sorted. May not need the free appointment as my friend at 26 has just reported that no. 30 has been round looking for her agreement to report 'trespassers' with fence panels (as we had told him we were entiltled to remove them and planned to do so) so that he can report them to the police and bring charges. We already know it is a civil matter, and the police will do nothing unless there is a breach of the peace or violence.
It might help to see the situation in terms of three issues i.e.
1. the right of way being disputed;
2. who if anyone is potentially liable for not warning of the dispute;
3. whether or not your insurer should pay your legal costs in sorting out the dispute.
As long as it is soon, so you can get things moving and don't have wait a month, I would take up the free appointment, you don't get many of those! Your friend's warning is nice but you do need legal advice. So in no particular order ...
2. The issue of who, if anyone, is liable for not warning you of the dispute I would put on back burner. It will not be quick or simple to tackle.
3. Your solicitor or, if you don't trust him, the 'free' solicitor - but you will have to pay - could be asked to follow up with your insurer saying you did take out the insurance and agreed on the premium BEFORE this issue arose. On that basis, they should honour their insurance and pay your legal costs, the first ones being to issue an injunction to regain use of your right of way. If the insurer wants you to use their solicitor they should say so, if not you intend to use your own (this might be covered in the fine print?) As I said there is usually a time period from taking out the insurance when they will not accept claims. But are you saying your dispute only became a dispute some time after you moved in? In which case as long as you paid the premiums regularly I don't see that the insurer has a leg to stand on and they should meet your legal costs.
1. The burning issue is the right of way.
You want to get on and sell. Personally I would tackle the knotweed problem as a matter of urgency. I suggest you get quotes ASAP on the basis of available access to the back via your right of way. Issue an injunction for no 30 to clear your right of way. Precede this with a letter before action telling him you will take legal action if he doesn't clear the way.
If bully boy has not removed the obstruction, your team of big ugly men can come in and clear the way so that your contractor can proceed as agreed. At this point but not before
advise the police - say that an injunction has been ignored and your contractor is due to start work and needs access - you fear there is a risk of breach of the peace or worse when you legitimately clear the obstructions.
You will thus be in the position of legally and properly going about your business and bully boy will be in the wrong if he tries to prevent you using your right of way. Don't even try to remove the fence until you have your injunction and have allowed him time to restore access. Only notify the police to be present when you are about to clear the obstruction, as necessary to exercise your legal right of way.
Even if you can't get the insurer to agree quickly I would get on and pay for an injunction to get this thing moving.
Then you will feel a lot better