Tree fallen on right of way

chinnyhill10
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Tree fallen on right of way

Post by chinnyhill10 » Mon Oct 28, 2013 10:42 am

Hi,

We are one of a small group of houses that have a main access point which spurs off of a driveway to a commercial premises (a care home).

We have an easement over the most direct route down to the main road, but there is also a loop that joins the same track to main road. This could act as the most direct diversion should our main route ever be blocked. Indeed it is the diversion all the visitors to the home also would use.

This morning a tree came down across the main access. As I understand it in law I can take the most direct route around the blockage (in this case the loop around the home which connects back to the main driveway).

However I've had the owner of the home shouting the odds at me for doing this. I'm pretty sure of my position (that the shortest diversion providing it is over the same property is permissible). He's tried to block us in to prevent us from using it but relented when I stood my ground (and also started video recording him at which point his mood seemed to totally switch from Mr Angry to being rather more considered and careful). I also had an independent witness to his actions which also seemed to cause him to rethink.

He's unblocked us now but I want to write him pointing out the case law so that he can't mess me around. So does anyone know what I should say/quote?

We do have another easement out in a different direction over other properties but it's far more inconvenient and as far as I see has no bearing on the main driveway and this dispute.


Thanks.


NB: Long time readers may remember this as the guy who refused to fill a dangerous pothole until the water board forced him to last year and was complaining about water draining onto his driveway despite it having nothing to do with us. He was also demanding money for resurfacing work which we paid until he got upset over something else (nothing to do with us) and sent it back! I think the word is "hot head". And he also tried and failed to fence off part of the neighbours property claiming it as his own and then had to back down.

stufe35
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Re: Tree fallen on right of way

Post by stufe35 » Mon Oct 28, 2013 12:48 pm

I believe you are correct that you may divert around an obstruction so long as you stay on the servient owners land.

Also I believe you would be within your rights to clear the obstruction yourself if required.

chinnyhill10
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Re: Tree fallen on right of way

Post by chinnyhill10 » Mon Oct 28, 2013 2:16 pm

stufe35 wrote:I believe you are correct that you may divert around an obstruction so long as you stay on the servient owners land.

Also I believe you would be within your rights to clear the obstruction yourself if required.
He's on the case with clearing it at the moment. He can't afford to leave it blocked which is a comfort. I'm just coming to resent his attitude problem. Unless he thinks he's getting something out of it, he is as awkward as possible.

We're not totally stuck as there is a long track that leads out in another direction which we have the use of. But that's useless for ambulances, fire engines, or anything bigger than a Transit. It also of course has no bearing on his portion of land. He's under the mistaken apprehension that just because we have another exit, he can just block us in.

I want him to know that the principle is that if the main entrance is blocked, we can go the other way unhindered.

andrew54
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Re: Tree fallen on right of way

Post by andrew54 » Mon Oct 28, 2013 4:28 pm

You might do best to ignore him, don't write a letter.

chinnyhill10
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Re: Tree fallen on right of way

Post by chinnyhill10 » Mon Oct 28, 2013 5:07 pm

andrew54 wrote:You might do best to ignore him, don't write a letter.
This may well be the right response given the latest development......

Just found a note pinned to to our door asking us to drive carefully around the diversion while the tree work takes place. Not signed by him but on his company notepaper.

Since the note says "drive carefully" and not "do not" perhaps he's consulted someone or realised the error of his ways.

stufe35
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Re: Tree fallen on right of way

Post by stufe35 » Mon Oct 28, 2013 8:04 pm

The successful sharing of tracks relies on everyone understanding their legal situation, but also on everyone being reasonable. Good knows ive been there and still am. i accept the bloke you are dealing with might be a pain, but it seems to me he has acted quickly to clear the route, watching the news tree surgeons must be in short supply today.

How quick could you have organised to move a tree today ?

In his hour of need the onus is on you also to be reasonable, yes you can divert over his other track, but isn't it lucky for you there happens to be another way on his land. Would it be unreasonable for you to use your other route for a couple of days.?

When you buy a property that some one else has a right of way over you have to accept this, not all servient owners understand there position properly, or in deed want to.

As a dominant owner you do have have very strong rights, but when you bought your property you knew too it was along a shared access and this has its limitations (some that are real practical ones like trees falling down) . Whilst the law is with you,you do have to show reasonableness if you want to be met with reasonableness.

I speak as a dominant owner who has had a very unpleasant time with a ROW and has thought about this a lot !

ukmicky
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Re: Tree fallen on right of way

Post by ukmicky » Mon Oct 28, 2013 9:19 pm

This morning a tree came down across the main access. As I understand it in law I can take the most direct route around the blockage (in this case the loop around the home which connects back to the main driveway).

However I've had the owner of the home shouting the odds at me for doing this. I'm pretty sure of my position (that the shortest diversion providing it is over the same property is permissible). He's tried to block us in to prevent us from using it but relented when I stood my ground (and also started video recording him at which point his mood seemed to totally switch from Mr Angry to being rather more considered and careful). I also had an independent witness to his actions which also seemed to cause him to rethink.
The souurce of that infomation is incorrect ,you have no rights at all to walk on land that you have no easement over ,even if a tree has fallen and blocked the way
Last edited by ukmicky on Mon Oct 28, 2013 9:24 pm, edited 1 time in total.
Any information provided is not legal advice and you are advised to gain a professional opinion

andrew54
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Re: Tree fallen on right of way

Post by andrew54 » Mon Oct 28, 2013 9:23 pm

ukmicky wrote:
As I understand it in law I can take the most direct route around the blockage
i am afraid you and the other are incorrect, what you did was a trespass
I believe what he did would not have been trespass if the 'way' had been a public right of way.

ukmicky
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Re: Tree fallen on right of way

Post by ukmicky » Mon Oct 28, 2013 9:29 pm

andrew54 wrote:
ukmicky wrote:
As I understand it in law I can take the most direct route around the blockage
i am afraid you and the other are incorrect, what you did was a trespass
I believe what he did would not have been trespass if the 'way' had been a public right of way.
I reposted and edited apparently not in time :)

We however are not talking about a PROW,so my advice still stands :)
Any information provided is not legal advice and you are advised to gain a professional opinion

chinnyhill10
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Re: Tree fallen on right of way

Post by chinnyhill10 » Mon Oct 28, 2013 9:38 pm

ukmicky wrote: The souurce of that infomation is incorrect ,you have no rights at all to walk on land that you have no easement over ,even if a tree has fallen and blocked the way
I do not believe you are correct. Everything else I've read today suggests that I may divert along another route providing that the diversion remains on the same land. It would only become trespass if I went onto a third parties land.

stufe35
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Re: Tree fallen on right of way

Post by stufe35 » Mon Oct 28, 2013 9:42 pm

I'm with chinnyhill on this, can you guys give background info ?

ukmicky
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Re: Tree fallen on right of way

Post by ukmicky » Mon Oct 28, 2013 9:58 pm

chinnyhill10 wrote:
ukmicky wrote: The souurce of that infomation is incorrect ,you have no rights at all to walk on land that you have no easement over ,even if a tree has fallen and blocked the way
I do not believe you are correct. Everything else I've read today suggests that I may divert along another route providing that the diversion remains on the same land. It would only become trespass if I went onto a third parties land.

Where has that infomation come from as it is incorrect ,as is the previous advice on the forum. It may seem a justified course of action but there is no case law that would help you that i am aware of which you could use as a defence against tresspass in these circumstances.

You may of had an argument if there was no way to get from your land and it was an emergency situation but as you say this is your main access point i assume you have other way to access your land.

You may of had a slight argument if the blockage was placed their by the servient owner but even then it would only provide a case for sympathy.


However this tree fell due to an act off nature and at no point do you have a right to tresspass over the servient owners lands in order to bypass the obsticle.

You either remove the obsticle yourself or sue for substantial interference if the obsticle is not moved within a reasonable time.
Any information provided is not legal advice and you are advised to gain a professional opinion

stufe35
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Re: Tree fallen on right of way

Post by stufe35 » Mon Oct 28, 2013 10:24 pm

Gents/Ladies

Private Right of Way
See also What is an Easement?
Ideally, the owners of both the dominant and servient tenements should know exactly:
• where the right of way runs from and to;
• exactly what route the right of way follows between those two points;
• whether there are any width, weight or height restrictions on the traffic that uses the right of way;
• whether the traffic permitted to use the right of way includes motor vehicles, motor cycles, or is restricted to passage on foot;
• whether there are time restrictions in force, either as to time of day or day of the year, on which the right of way may be used;
• who is responsible for the maintenance of the right of way.
Rarely are all, or even a fair proportion, of these things stated in the Deed of Grant or in the clause of the conveyance by which the righht of way is expressly granted.
Generally:
• you may pass and repass along a right of way as long as you do not stop and linger on the right of way;
if the right of way is obstructed then you may divert along another route provided that the diversion remains on land belonging to the servient tenement (otherwise you would be trespassing on a third party's land);

From a chartered land surveyors web site specialising apparently as an expert witness for private rights of way !

Confused ?.....you will be !

chinnyhill10
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Re: Tree fallen on right of way

Post by chinnyhill10 » Mon Oct 28, 2013 10:32 pm

stufe35 wrote:if the right of way is obstructed then you may divert along another route provided that the diversion remains on land belonging to the servient tenement (otherwise you would be trespassing on a third party's land);

From a chartered land surveyors web site specialising apparently as an expert witness for private rights of way !
Which is pretty much what I read on a couple of other sites selling legal services. I'm not sure what they would achieve by misleading people.

ukmicky
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Re: Tree fallen on right of way

Post by ukmicky » Mon Oct 28, 2013 10:51 pm

stufe35 wrote:Gents/Ladies

Private Right of Way
See also What is an Easement?
Ideally, the owners of both the dominant and servient tenements should know exactly:
• where the right of way runs from and to;
• exactly what route the right of way follows between those two points;
• whether there are any width, weight or height restrictions on the traffic that uses the right of way;
• whether the traffic permitted to use the right of way includes motor vehicles, motor cycles, or is restricted to passage on foot;
• whether there are time restrictions in force, either as to time of day or day of the year, on which the right of way may be used;
• who is responsible for the maintenance of the right of way.
Rarely are all, or even a fair proportion, of these things stated in the Deed of Grant or in the clause of the conveyance by which the righht of way is expressly granted.
Generally:
• you may pass and repass along a right of way as long as you do not stop and linger on the right of way;
if the right of way is obstructed then you may divert along another route provided that the diversion remains on land belonging to the servient tenement (otherwise you would be trespassing on a third party's land);

From a chartered land surveyors web site specialising apparently as an expert witness for private rights of way !

Confused ?.....you will be !
Show me one piece of case law that agrees with that and also agrees with it when the obstruction has not been caused by the servient owner.

It also says generally ,generally does not mean in all situations.

Mr maynard also has a nice big disclaimer on the site
General Disclaimer:
The information given on this web site is of necessity of a very general nature and cannot be relied upon to meet your specific requirements. Neither Jon Maynard FRICS nor Jon Maynard Boundaries Ltd can be held responsible for any action that may or may not be taken by anyone who accesses this site and acts on the basis of any information found within. Whilst it is hoped that the reader may gain benefit from the information in this site, liability can only extend to specific advice given by Jon Maynard FRICS after completion of a formal engagement letter.
Last edited by ukmicky on Mon Oct 28, 2013 11:01 pm, edited 1 time in total.
Any information provided is not legal advice and you are advised to gain a professional opinion

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