Back again

[arsie]

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.

You are entitled to recover your costs from the vendor if he did not admit/tell you there was already a dispute. Check with your solicitor. As Pilman explained, you have only to show your deeds and photos of everything as evidence to the courts to gain an injunction.

So, 30 (and 28) use the right of way for vehicular access: does that mean you others (32, you, 36) may do so too?

It would still be interesting to hear the detail of how your insurer got wind of the dispute. Insurers reasonably will not pay costs etc for a dispute already in existence - how did they find and and when? Unfortunately this sort of thing is not uncommon and so insurers usually have a short period after you take out a new policy when they will not pay out. I think you said your solicitor told them? A solicitor has a duty to tell the truth at all times and would not have been allowed to 'keep quiet' once he knew there was a dispute but he should have told you that you had to declare the dispute already existed before he mentioned this to the insurer.

Be strong. You have come a long way already. You will prevail and it won't take too much longer

[despair]

Surely you must also have a case against the vendor for total misrepresentation

Clearly they had a problem with this guy too and concealed it claiming overgrown garden

Equally your solicitor should have requested more information at the time too

[COGGY]

Arsie, I enjoyed your explanation of the name you use on here, as I have been thinking for some time that Arsie does not "fit" you.

Regards
Coggy

(When I was young my father kept chickens, which I refused to eat, so they told me we were eating coggyok meat!!!!!)

[arsie]

Arsie, I enjoyed your explanation of the name you use on here, as I have been thinking for some time that Arsie does not "fit" you.

Sussed

(When I was young my father kept chickens, which I refused to eat, so they told me we were eating coggyok meat!!!!!)

And now you are just a veggie like me

[Jerseymum]

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.
I am so very tired of this.
We have tried to do the decent thing and speak to him, we offered to erect a fence at his legal boundary so that the ROW would be clear, but he is such a bully.
i just want to be able to sleep at night knowing that we can escape if there is a house fire, or let ourselves in at the back if the front door key snaps off in the lock, or not have to have sewage taken out through our home if the sewer backs up again.

[Jerseymum]

Google map has an image of the ROW, clearly delineated by fences, until it gets to the parking space for 28 where they have not chosen to maintain (or may not have ever erected) a solid boundary. These same photos (taken after we bought 'cause our shed's on there) shows overgrowth where no. 30 claims there was always fencing since he bought, but we have only seen fencing connected to the rear wall since he re-fenced it last September.
My husband went through the gap to check in the winter of 2010/2011 but didn't get far because of overgrowth, and the fence could not have been contyinuous, otherwise no. 30 would not have been able to illegally cross 36's land and bolt and padlock the gate.
Argh!

[COGGY]

I am so sorry for the stress you must be under. It is obviously worse if your husband has already had to move. Please believe you are in the right and it will be sorted satisfactorily eventually. It sounds promising if the neighbours are all working together to sort this out. If you are seriously worried about your safety then phone the police and tell them of your worries. It depends on who answers the phone, some are more helpful than others. They should log that you need an urgent answer if threatened. Cheer yourself up by thinking of when it is sorted, you are moved and life is good again. Problems like this take over your life, but it will end. Life will be good again. If you are worried about fire aspects phone the fire brigade and ask for advice. They are usually very helpful.

[arsie]

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

[arsie]

As an afterthought, I notice we haven't heard much of/from no 28 in all this; except you say no 30 'purchased the right of way from no 28' for vehicular access? This sounds a bit fishy to me. Is no 28 in cahoots with no 30 trying to turn what was once a common right of way for all into a private drive for just the two of them share? Any idea when this transaction occurred? Can your ally in no 26 cast any light?

But this is by the way. I suggest stick to 'Plan A' above if there are no better ideas forthcoming? Pilman?

[Jerseymum]

No. 28 hasn't responded to our letters. The situation there is that his property is rented out as a number of flats, and in 1998 or thereabouts, he sold part of his garden land (which is all paved off to provide parking for his tenants) and a right of way over it to no. 30. We're taking 28's silence as implicit consent. No. 32 (our direct neighbour) is keen for the ROW to be opened up as there is knotweed on her property and she wants it dealing with.
I keep thinking we've made a decision and then something else happens.
Maybe I should sleep on it.

[span]

and move to Yorkshire in order to live with my husband and I'm probably going to cry, now.

I'd cry too if I had to move to Yorkshire!

[arsie]

and move to Yorkshire in order to live with my husband and I'm probably going to cry, now.

I'd cry too if I had to move to Yorkshire!

Yorkshire folk are ok - are these neighbours?
Two are ok but not much help; two are silent and no help; one is a piece of sh*t.

@Jerseymum: I wouldn't imply anything from no 28's silence. They were the ones who sided with no 30 to widen the right of way for cars. I don't suppose before then there were any cars at all as the passage was too narrow. Which is why I am curious what has happened in the past at no 26, her property had to lose (sell?) a bit of land to widen the track for cars?

[Jerseymum]

Pinkie, that's where our uncertainty lies: because the 'garden path' is unregistered and no. 30 or his predesseor has fenced it off a 'long time' ago we are unsure of our legal grounding. Our deed can only pass on certainty of passage over36's land and the 'garden pathway: the land that is accepted as a communal pathway. However, if the communal pathway was blocked because someone took it upon themselves to fence it off...? Where do we stand, then?
The only reason I can't provide a copy of the Land registry map is that I haven't yet worked out how to copy it in small enough KB resolution, but I haven't deviated from the original except that I am a naff artist .
We bought, in good faith that there was a right of way. However, we did not know that there was knotweed on the land as there was nothing other than new, landscaped lawn when we bought (our professional knotweed survey says it is at least 8 years old and we only bought 3.5 years ago and became aware of the knotweed within 3 months of purchase) and we were not made aware that there was any problem with no. 30 in the HIP . We purchased 6 weeks before the HIP was cancelled, which is our bad luck, I'm sure. However, our deed still states we have a right of access to maintain the rear of our property over the 'garden path, 3 ft wide at the end of the ROW coloured green in the conveyance.
I am prepared to believe that our vendor never approached no. 30, but I suspect otherwise .
It is impossible, given the 3.5 years of our occupation and the 8 year minimum growth that the knotweed surveyor emailed me, today, that the vendor didn't know there was a knotweed growth, as they would have had to chop it back and then build the fence across it. We became aware of knotweed less than 3 months after we purchased.
Is it of any import that our neighbour at 32 was a child in the property when 32-36 were all one land-mass and remembers free access at the rear before the properties were split in the 1960s?
There does not seem to be any holder for the land of the 'communal pathway': there is some reference to it belonging to an urban council in the 1880's during slum eradication, but when T_____d was turned into a New Town, the existence of the path was forgotten/lost. On the OS map during the land searches when we purchased, the path way appears in the same colour as public pathways, however the planning department and highways depart say it isn't council land. The ROW officer is on holiday for the next week but I am noy confiedent that he will call me back.
The water-board S_____ T____ W____ have not responded to me enquiries regarding utility easement. The Fire service has not responded to my enquiries. BT have not responded regarding the existence of a telegraph pole on no. 32's stretch of the questioned footpath blocked off by no. 30. Is there any mileage in BT having erected a new pole outside of the fromt access to no. 30 in 2011 despite the fact that there was an existing pole on the access pathway that they have had to bypass due to inability to access?
There are so many differing opinions...I am too confused

[Jerseymum]

Also, Pinkie, we are a terrace of 1840's properties. The only reason 28 and 26 have access to the road is that 26 bought access from 28 when 28 got planning permission to turn their garden ground into parking space and in the late 1990's no. 30 bought access and a parking space from 28's parcel of land.

[Jerseymum]

According the the Land registry and Ordinance Survey maps, there is an unregistered pathway of 3ft width which runs from the top, right hand boundary of 36's land which 34's deed refers to having access over, past the end of 32's land (which 30 seems to have 'absorbed within his fences) past the end of 30's land (according to their land registry details) and past 28's land (ditto) the dog-legging past only one property who says that they do not own the ROW to another public highway. This 3ft-wide pathway is referred to as a garden-path or a communal path to P_____'s Street
There are some records that this pathway and similar were owned by the W_________ Urban Council, but there is no record of it after the W_________ Urban Council was absorbed by the T______ and W_____ Council in the 1970s/1980s when it became part of the New Town.

aaaagh!
that's roughly the only noise I have left
Sarah