Obstructing my right of way outside of the right of way

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stressederic
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Re: Obstructing my right of way outside of the right of way

Post by stressederic » Fri Oct 13, 2017 2:06 pm

Collaborate wrote:
arborlad wrote:
MacadamB53 wrote:...........it is preposterous to suggest the property comes with an additional easement by necessity purely to allow for larger-sized motor vehicles.


The OP is not arguing for anything additional - he is still using the same vehicle as at time of grant.
But it is not for the grantor of the ROW to ensure that what OP negotiates is fit for OP's intended purpose. OP's property is not landlocked, so there is no easement of necessity. There is a case of Sweet v Sommer [2004] All ER (D) 312. where an easement of necessity was allowed even though there was another method of access, but that was because that other means of access could only be made possible by demolishing a building. this is not in the same category as Sweet and Simmer.
Hi Guys,

Just to recap.

My land is landlocked in a way that all land surrounding it is owned by the NFH. Between the private driveway and my land is a grass verge. The only access to my land is across a portion of said verge which is my ROW ie the 5m wide area. I have NO where else to access my land at all other then the 5m wide ROW.

The other side of the private driveway there is a wall abutting the driveway...which is why its even more difficult to get off my land onto the driveway.

The NFH has moved the initial position of the 5m wide ROW by 1 meter ie moved the goal posts. This has subsequently made it more difficult for me to access onto my land as the moving of the 5m wide row has made the turn onto the 5m row and then my land tighter and more so coming from my land onto the driveway...this is because there is a slight curve of the driveway to where the 5m wide row is now located. I know this may seem somewhat pedantic, but it really has made it more difficult to access through the ROW onto my land and off due to the NFH moving the ROW by 1 meter.

MacadamB53
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Re: Obstructing my right of way outside of the right of way

Post by MacadamB53 » Fri Oct 13, 2017 2:11 pm

Hi beardsince1978,

The NfH sold the OP the property and a property must be sold with access.

it has been - that seems to be what you refuse to acknowledge.

the property in question - a field - can be accessed by passing along the 2.5m wide track that already existed and then turning onto a 5m wide track.

the OP has disclosed that he has been able to access the property - he just finds this difficult if he tries to do so in his choice of motor vehicle.

so he cannot argue that he has effectively been sold landlocked property and he cannot argue that the owner of the verge beside his property is obliged to allow him to trespass over the verge.

this might seem unfair, but the OP needs to focus on resolution - like negotiating a wider ROW or seeking advice about whether the vendor had a right to relocate the route.

kind regards, Mac
edit: stressederic, the property is not landlocked so you need to dismiss that idea

pilman
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Re: Obstructing my right of way outside of the right of way

Post by pilman » Fri Oct 13, 2017 5:40 pm

The NFH has moved the initial position of the 5m wide ROW by 1 meter
Having skipped through all postings to page 12 and having seen this quote, does that mean this move was done legally of just done because it suited the NFH?

arborlad
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Re: Obstructing my right of way outside of the right of way

Post by arborlad » Fri Oct 13, 2017 8:42 pm

Collaborate wrote:
arborlad wrote:
MacadamB53 wrote:...........it is preposterous to suggest the property comes with an additional easement by necessity purely to allow for larger-sized motor vehicles.


The OP is not arguing for anything additional - he is still using the same vehicle as at time of grant.
But it is not for the grantor of the ROW to ensure that what OP negotiates is fit for OP's intended purpose.


The ROW, as granted, was fit for purpose - the OP had been using it for several years with the same vehicle. Subsequent moves and the addition of posts means it is no longer fit for purpose.



Collaborate wrote:
2. I think you misunderstand what a ransom strip is if you equate it to post marking the boundary of a property.


The post sits around 1m from the boundary so can't be considered as a boundary marker.
arborlad

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Collaborate
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Re: Obstructing my right of way outside of the right of way

Post by Collaborate » Fri Oct 13, 2017 9:11 pm

The post sits around 1m from the boundary so can't be considered as a boundary marker.
Really? Where do you get that from?

In the first post on this thread OP stated:
I have a situation in which i cannot exercise my right of way at all in my vehicles (my right of way is written 'at all times and for all purposes') due to my neighbours putting 'obstructions' on their land ie on the boundary of my right of way. They have denoted the exact location where the right of way/my access road is as well as its width. They have not obstructed the right of way by placing anything on the right of way itself. There is no where else for me to access my access road legally or physically (walls/fences) other than where i have my right of way. My access road leads to my land not my house.
Sounds like the obstructions are on the boundary to me.

stressederic
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Re: Obstructing my right of way outside of the right of way

Post by stressederic » Fri Oct 13, 2017 9:19 pm

Collaborate wrote:
The post sits around 1m from the boundary so can't be considered as a boundary marker.
Really? Where do you get that from?

In the first post on this thread OP stated:
I have a situation in which i cannot exercise my right of way at all in my vehicles (my right of way is written 'at all times and for all purposes') due to my neighbours putting 'obstructions' on their land ie on the boundary of my right of way. They have denoted the exact location where the right of way/my access road is as well as its width. They have not obstructed the right of way by placing anything on the right of way itself. There is no where else for me to access my access road legally or physically (walls/fences) other than where i have my right of way. My access road leads to my land not my house.
Sounds like the obstructions are on the boundary to me.
Since taking legal advice and taking in to consideration the moving of the ROW from its initial position...i now say one of the posts IS on the ROW when you consider the initial position of the ROW. I still have he 5M width, just in a different location from where it originally was.

arborlad
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Re: Obstructing my right of way outside of the right of way

Post by arborlad » Fri Oct 13, 2017 9:28 pm

Collaborate wrote:
The post sits around 1m from the boundary so can't be considered as a boundary marker.
Really? Where do you get that from?


See sketch - page one.
arborlad

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ukmicky
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Re: Obstructing my right of way outside of the right of way

Post by ukmicky » Fri Oct 13, 2017 11:22 pm

beardsince1978 wrote:
MacadamB53 wrote:
beardsince1978 wrote:My point was that even though 2.5m track and 5m opening sounds large it may not be when there is no splay. Personally I would try this on Autoturn and see what that reveals. Maybe no cars can do the turn or only really tiny ones. It would at least give the OP a better idea of the problem and how he might change his drive inside to make things easier.
it will never show the property has an easement by necessity, though, which was what you originally suggested.
Maybe we will have to agree to differ on this. But to my mind the question is what is a reasonable ROW. Say ROW was 1m wide, would that reasonable? Or should be able to take a car? What size car? The NfH sold the OP the property and a property much be sold with access. The question is, what is legally an acceptable access? Is there a definition? I'm willing to give the OP the benefit of the doubt and assume that he has normal sized car and can drive reasonable well and that the layout is what makes it impossible (?) to get in.
An easement of necessity will only grant the minimum level of access required. The minimum required is foot access.

What is reasonable is what was granted, nothing more and nothing less.
Advice given is not legally qualified and you are advised to gain a professional opinion

Collaborate
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Re: Obstructing my right of way outside of the right of way

Post by Collaborate » Sat Oct 14, 2017 6:59 am

The sketch on p1 doesn’t support your contention that the posts encroach on the ROW. The issue here is whether the NFH had the right to reposition the ROW but even that may be academic because one thing he undoubtedly has the right to do is mark the boundary of the ROW as tightly as he likes.

arborlad
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Re: Obstructing my right of way outside of the right of way

Post by arborlad » Sat Oct 14, 2017 11:20 am

Collaborate wrote:The sketch on p1 doesn’t support your contention that the posts encroach on the ROW.


You seem to be confusing the limit of the granted easement with the limit of the neighbours land.

At no time have I stated that the posts are encroaching on the ROW.

The sketch on page 1 clearly shows a metre wide verge sitting between the contentious posts and the boundary - there is no possibility that those posts can be considered a boundary feature.
arborlad

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pilman
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Re: Obstructing my right of way outside of the right of way

Post by pilman » Sat Oct 14, 2017 3:25 pm

Just to add a rather late comment to this thread started in July, the moving of an established right of way may itself have been an unlawful interference with a granted right of way.

Has the solicitor tasked with dealing with this matter made any comments about whether such a move was unlawful and will be brought up in any necessary court proceedings?

A Grantor cannot derogate from a grant. Once the access had been created, it would be considered unreasonable for the Grantor to decide three years later that he will move the access position with no consultation with the grantee.

Without a sight of the actual deed of grant and the plan included with that deed, it would be unlikely that anyone can comment accurately on what was the intention of the two parties to the grant.

The intention will be taken into consideration when a judge is asked to decide what was the reason why this right of way was being granted, and also why it was unilaterally decided by the Grantor to move the original position of the access more than three years after the right of way began to be exercised.

That is when the new position started to cause more problems for the Grantee, because of the lie of the land, so it will need to be referred to in any court action.

Now that a solicitor has been tasked with dealing with this matter, some of the comments posted recently are beginning to drift off topic. as is so often the case when a posting reaches its 12th page of comments.

From a right of way problem, to a theft of wood problem, to a cctv camera location problem, it's interesting to see how silly some comments were when one has a spare few hours to read all 12 pages on a Saturday afternoon.

The alternative was a good novel, which I'm now about to move on to.

annie08
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Re: Obstructing my right of way outside of the right of way

Post by annie08 » Sun Oct 15, 2017 7:32 pm

Perhaps my story might give the OP some hope. A few years ago my neighbour who owns a ROW over our driveway said he intended to exercise his right.There is a stone wall at the top of the ROW on the boundary which prevented him from ever having used it but he intended to demolish it.

As he was not landlocked and had an alternative access which he'd always used we resisted and looked into ways of denying him access as we would have lost all our off street parking. There was a small section at the front of the driveway adjoining the highway which we discovered was not marked on the easement and was not owned by anyone. We claimed adverse possession which was granted. We took advice from a QC and asked if, because the easement didn't include that area, whether that would prevent them using the ROW. Her opinion was that if it were to come before a judge he/she would be very likely to say that use of that section would be deemed to be "within the spirit of the ROW".

Perhaps in the OP's case a judge might say that it is "within the spirit" of the granted ROW that there is suitable and unrestricted access to the ROW?

jonahinoz
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Re: Obstructing my right of way outside of the right of way

Post by jonahinoz » Mon Oct 16, 2017 7:00 am

ah, so I can ask friends, family etc. to dump their unwanted crap in my garden the day before exchange and it automatically becomes part of the sale and therefore not their crap anymore - thanks for the tip.

Hi,

My mate bought a dilapidated house. The ground floor had fallen into the cellar. The fire brigade had to shore up the building before they could remove the body. When my mate eventually got up to the first floor, he found a bedroom full of cameras. After checking with his solicitor, he sold the Leicas ... the lesser brands are occupying a couple of shelves in his garage.

John W

stressederic
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Re: Obstructing my right of way outside of the right of way

Post by stressederic » Mon Oct 16, 2017 4:43 pm

annie08 wrote:Perhaps my story might give the OP some hope. A few years ago my neighbour who owns a ROW over our driveway said he intended to exercise his right.There is a stone wall at the top of the ROW on the boundary which prevented him from ever having used it but he intended to demolish it.

As he was not landlocked and had an alternative access which he'd always used we resisted and looked into ways of denying him access as we would have lost all our off street parking. There was a small section at the front of the driveway adjoining the highway which we discovered was not marked on the easement and was not owned by anyone. We claimed adverse possession which was granted. We took advice from a QC and asked if, because the easement didn't include that area, whether that would prevent them using the ROW. Her opinion was that if it were to come before a judge he/she would be very likely to say that use of that section would be deemed to be "within the spirit of the ROW".

Perhaps in the OP's case a judge might say that it is "within the spirit" of the granted ROW that there is suitable and unrestricted access to the ROW?
Hi,

Thanks for that.

I have always maintained my stance that the ROW was granted to allow access by vehicle to my land. This is evident by the fact the ROW is 5m wide. The car i have now is the same car i owned when the ROW was granted. I could exercise the ROW prior to the posts been erected and ROW been moved, in my car. I now cannot access on and off my land in the same car.

I also now understand that when driving on and off my land and from time to time when i clipped a small part of the grass verge outside of the ROW this is classed as trespassing by the letter of the law. My stance on this is that surely by the fact my neighbour granted the ROW in this area they accepted that from time to time the aforementioned may occur (its not like its a prize flower and bed). Then 3 years down the line and my NFH then decides he wants to make my life as difficult as possible so a) moves the ROW and b) inserts 2 posts on either side of the ROW.

MacadamB53
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Re: Obstructing my right of way outside of the right of way

Post by MacadamB53 » Mon Oct 16, 2017 5:58 pm

Hi stressederic,

its not like its a prize flower and bed

suppose both the alleged NFH and your good self sell up and move on...

...some time after his successor- a very nice chap - wants to put the verge land to some other use.

are you suggesting he could not because your successor would have a right to drive over it?

I think you are, and I think you're mistaken.

kind regards, Mac

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