ROW abuse???

mr sheen
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Re: ROW abuse???

Post by mr sheen » Sat Feb 10, 2018 6:51 pm

There are a number of issues with this.
Only the owner of the servient land is likely to be successful in gaining any legal redress unless the right of way is being obstructed by the dominant user.
Who would 'police' who exits the track where and how could other users enforce restrictions on other users with equal rights.
Where people have rights over land, they have the right to ensure that those rights are not interfered with but where someone is doing something you don't like but that does not adversely affect your specified rights, the law is unlikely to assist you to exceed your rights by imposing your desires/opinion/annoyance on others over whom you have no control.

Seeking to pursue this will cause you endless stress, cost a pretty penny and is unlikely to be able to force someone else to abide by your preference of how a track over which you only have a right of way is exited.

arborlad
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Re: ROW abuse???

Post by arborlad » Sat Feb 10, 2018 7:38 pm

IdefixUK wrote:The coloured mark goes all around the whole of the serviant land, not just the track



Your reluctance to provide a plan is fully understandable and your doing a good job of describing the situation, but, without more to go on, I think this is a situation where the servient owner needs to seek advice from a professional who can see all the relevant paperwork.
arborlad

smile...it confuses people

MacadamB53
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Re: ROW abuse???

Post by MacadamB53 » Sat Feb 10, 2018 8:42 pm

Hi IdefixUK,

details so far seem to support the dominant owner’s position - but would be wrong to say any more than that with those details being snippets.

kind regards, Mac

IdefixUK
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Re: ROW abuse???

Post by IdefixUK » Sat Feb 10, 2018 9:06 pm

Mr Sheen.
I'm pleased that you are interested but, with all respect might I ask that you read the thread again, I ask this because I don't understand your reply, perhaps you would be kind enough to respond again.( but I understand the bit about stress!)

Arbourlad.
Thanks for staying onboard with this. If there were some way of corresponding by private message I would welcome that. The title really doesn't have anything in it relating to the right of way apart from that which I have already stated. I hope that you, and perhaps some of the more experienced members of Gardenlaw, can help me further with my query. It strikes me that the easement could have been written with more detail from the outset, but what is written is written, and perhaps I should just stay quiet and allow the gardens to be chewed up at the will of those who have rights over it. This whole situation doesn't feel "just" to me and if the serviant owner has the right to prevent the potential coming events I would dearly like to know.
There would be little point in calling the police or even getting an injunction unless the law of the land is actually on "our" side.
I'm sure I read some years ago about the intentions of the parties at the time of the expess of easement being relevant, but I can't for the life of me remember where I read it. Does anyone out there know about this....or perhaps I was dreaming.
Surely there must be some general rule/law which prevents damage over the burdened land by those who have rights over it.

pilman
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Re: ROW abuse???

Post by pilman » Sat Feb 10, 2018 9:34 pm

The coloured mark goes all around the whole of the servient land, not just the track (which is on that land).
The starting point when trying to understand the purpose and intention of a grant is to read the deed that included the grant and look at the plan used with the deed.

Either the words are more important, or the plan is.
When the plan is stated to be "for identification only" the words prevail when interpreting the grant.
When the deed used words such as "the right of way more particularly delineated on the plan annexed to this deed", that is when the plan has more importance than the words.

What was stated earlier by Mr. Sheen and queried by the OP is that only the owner of the servient land can begin legal proceedings that would seek to prevent the use being contemplated by the owner of a dominant tenement who has the grant recorded on their deeds.

If the OP objects to the proposed use of the servient land, then there appears to be nothing he or she can do about the proposed use unless he or she is able to convince the servient land owner to begin proceedings to have the matter settled by a judge.

One other option would be to claim a prescriptive right to use the ornamental elements of the grounds due to over 20 years use of the grounds. The main legal authority regarding easements was "re Ellenborough Park" which concerned a right granted to a number of houses to use the park set out in close proximity to each of the houses build by a common developer of all the land.
That was acknowledged to be an easement recognised under the law.

That would mean a prescriptive right to use land set out by the common owner of a development is capable of being a legal easement as long as 20 years use without force without permission and openly exercised can be proven. Then it would not be possible for an individual owner of one of the houses to interfere with such a legal interest over land.

How's that for thinking outside the box?

IdefixUK
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Re: ROW abuse???

Post by IdefixUK » Sat Feb 10, 2018 10:37 pm

Pilman.
Thanks for your "unboxed" idea there about a third party claiming prescription over the land , this could easily be done by someone not associated with the land who does enter the land at least a couple of times a day and has done since the days of the dinosaurs. He does so to gain access to a particular part of the land and has to cross pretty well all of it to get to the place he needs to be. But even if this prescriptive right were claimed how could that in itself stop another (who has an express easement) from creating a new road across part of the land. Surely those two "rights" could exist simultaneously, or perhaps I'm wrong again. Would that prescriptive easement turn the gardens into a protected zone in some way?
( Pilman..I should really like the opportunity to message you privately on this so that you could have sight of the papers I have. I know that it's a public forum, and I would agree to update the situation and be more forthcoming when (and if) the dust settles.) my fingers are crossed.

pilman
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Re: ROW abuse???

Post by pilman » Sun Feb 11, 2018 1:09 pm

I tried to send a PM, but all I saw was a blank screen, so unsure how the system is now set up.

In the last few weeks I created a web page because I am currently representing some friends of mine in a case to be heard by the Land Registration Tribunal, and I needed a formal e-mail address for correspondence.

The email address is: enquiries@pilmanlegalservices.co.uk

I can always give some free initial advice to someone posting on Garden Law, as I have been doing this since 2010.

IdefixUK
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Re: ROW abuse???

Post by IdefixUK » Sun Feb 11, 2018 8:10 pm

Having watched this forum over the last few months it is clear that When Pilman speaks everyone else seems to stop posting. Perhaps I'm paranoid with this case but in reality would like to hear more replies from those reading.

ukmicky
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Re: ROW abuse???

Post by ukmicky » Sun Feb 11, 2018 9:19 pm

Post the full wording ,not the small sample you gave us and a copy of the title plan and I will have a look.

You can cover up anything which identifies a location or individual
Advice given is not legally qualified and you are advised to gain a professional opinion

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