New member and this must be a first for this forum

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IdefixUK
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Re: New member and this must be a first for this forum

Post by IdefixUK » Sat Jul 20, 2019 1:02 pm

Peacemaker,
Has there been any progress in the last three weeks or so since your last post?
Regards

peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Fri Aug 02, 2019 11:39 am

Hello Idefix, no significant update other than the without prejudice letter has been sent so we await their response.

The other side have claimed that "it is clear that the parties had reasonably contemplated that the existing gateway would be entirely adequate for access" We have explicitly informed them that the right of way my property derives benefits from was reserved by the predecessor in title to my property unto himself. Accordingly it is my position, and critically Counsels' Opinion, that the property owner would not reserve a right for the benefit of his property as restrictive as my neighbour's interpretation of the same.

The other side also seek to rely upon Charles v beach & Another and attempt to draw distinctions between the same and the current case, they believe that unlike a flower bed, a hedge is not transient nor insubstantial. The fact that the hedge was was present in 1998/1999 is no longer there (removed between 1999 and 2004 for ref), as such, the argument that it is not a transient features holds no water as the hedge has been removed and is therefore by definition, transient.

Our right is incredibly broad and extends to the whole of the road without any limitation. It does not make reference ot an existing entryway and accordingly, per the Court of Appeal in Emmett v Sissons, which involved a virtually identical right of way:

"[22]...On their true construction the words plainly grant a linear access along the whole of the boundary and there are no words that either expressly or impliedly limit the access to any one point or a number of points."

Our insistence on having unrestricted access to our property is eminently reasonable and our neighbour interfering with the same is causing a substantial interference with our right of way.

peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Mon Aug 05, 2019 8:21 pm

Any thoughts Mr Sheen, IdefixUK, Collaborate...

mr sheen
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Re: New member and this must be a first for this forum

Post by mr sheen » Mon Aug 05, 2019 8:48 pm

IMO....The intentions at the separation of the land/ acquisition of rights are key in this case and whether the hedge was present at that time. Rights could not have been granted or acquired over the land on which the hedge stood at the time, only the available land.

The reasonableness of types of access is irrelevant where written documents are in existence and able to be interpreted in light of evidence.

Hence I still think this will continue to be a fight destined for a settlement or if no settlement can be achieved...then ...a Judgement.

ukmicky
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Re: New member and this must be a first for this forum

Post by ukmicky » Mon Aug 05, 2019 9:35 pm

A hedge is an insubstantial object as its subsequent removal has shown. It can not be classed as a permanent substantial feature. A hedge is a plant that can die or be removed with very little difficulty.

Ownership of the hedge is also important and the fact that it continues into the gardens whilst it may not 100 percent prove ownership, it is evidence towards it was owned by the dominant land.

A substantial feature should have also been marked on the plans.
Any information provided is not legal advice and you are advised to gain a professional opinion

IdefixUK
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Re: New member and this must be a first for this forum

Post by IdefixUK » Wed Aug 07, 2019 1:11 pm

Hello again Peacemaker
mr sheen wrote:
Mon Aug 05, 2019 8:48 pm
IMO....The intentions at the separation of the land/ acquisition of rights are key in this case and whether the hedge was present at that time. Rights could not have been granted or acquired over the land on which the hedge stood at the time, only the available land.

The reasonableness of types of access is irrelevant where written documents are in existence and able to be interpreted in light of evidence.

Hence I still think this will continue to be a fight destined for a settlement or if no settlement can be achieved...then ...a Judgement.
I think I go with mr sheen at the moment, except to say that I think it is pretty clear that the hedge and gates were in situ at the time of the grant.

Going for you you have Emmett V Sissons, the fact that your title shows the yellow road extending beyond the position of the gates along the boundary, and the wording in the deed which indicates that there was some thought of further development of your land which might have required access from the road way other that through the existing gates.

It is interesting that the opposition have chosen to use Charles V Beach in the hope that a hedge will be considered adequately substantial and not transient, rather like a brick wall would be considered, and not like a flower bed. That will be a question to be decided in a courtroom.

I think that flowers planted across a right of way could not be said to have been deliberately planted as a barrier against passage, yet I do think that a hedge could be thought of as a substantial "structure". As for transience, there are many hedges which have stood for decades if not hundreds of years, hardly transient.
Although I've never timed them, I guess a digger or a JCB would take about similar time to grub up a well established hedge as it would to knock down a brick wall, a dry stone wall would be knocked over in even less time.
That hedge in the photo looks well established to me and why have the gates there at all, if the intention was that access was to be made through the hedge?

All in all, you can see that I'm sitting on the fence here. Nevertheless, from what I have read of your postings I think your neighbour has been less than neighbourly towards you, and I hope that you regain the access you have enjoyed previously.

Thank you for keeping the forum up to speed with developments, all too often the OP stops posting and the final outcome is unknown to the readers of the thread.

Regards

As a post script you reposted (26/04/19) the plan from your neighbour's title showing the roadway in blue, yet on 08/08/18 you posted an extract of the neighbours title that describes " a right of way with or without motor vehicles at all times....over and along the road way shown coloured yellow on the plan....copy plan filed. You had earlier visited some websites which were not the genuine Land Registry site, did you get that plan from them...or where? Did you get the Land Reg plan downloaded? is the ROW land shown in blue or yellow. I'm just interested.

IdefixUK
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Re: New member and this must be a first for this forum

Post by IdefixUK » Wed Aug 07, 2019 9:11 pm

Contra proferentem. This seems to be a rule that applies in contracts and basically where the words of a contract could be taken in more than one sense then the courts will not side with the person who wrote, or suggested, those words. I'm no lawyer so I don't know if this can be applied to your case, or in which way it might be applied.
I would suppose that the person who sold the whole of the farm would have written the words, but I think that when a ROW is reserved the law treats it as though the purchaser of the servient land grants the easement.....so I don't know which side it could work for, or against. Hopefully someone out there will be able to enlighten us all.

Another thought came to me. We know that the whole was sold in two lots on the same day, with yours techically being the reserved land. I can see the logic of someone selling part of their property in reserving rights for their land for use in the future if they intended to stay put, but in this case surely the owner of the whole just wanted to sell for the best price he could get. He probably would not have been too bothered about protecting the rights of what techically became the reserved land.

Has your barrister been made aware that the sale was on the same day? Also is the barrister aware that you found the reminants of an old fence in the hawthorn hedge to the otherside of the gate position.

peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Fri Aug 09, 2019 3:10 pm

IdefixUK wrote:
Wed Aug 07, 2019 1:11 pm
Hello again Peacemaker
mr sheen wrote:
Mon Aug 05, 2019 8:48 pm
IMO....The intentions at the separation of the land/ acquisition of rights are key in this case and whether the hedge was present at that time. Rights could not have been granted or acquired over the land on which the hedge stood at the time, only the available land.

The reasonableness of types of access is irrelevant where written documents are in existence and able to be interpreted in light of evidence.

Hence I still think this will continue to be a fight destined for a settlement or if no settlement can be achieved...then ...a Judgement.

It is interesting that the opposition have chosen to use Charles V Beach in the hope that a hedge will be considered adequately substantial and not transient, rather like a brick wall would be considered, and not like a flower bed. That will be a question to be decided in a courtroom.

Setting aside all other points, substantial obstruction etc etc I think ownership of the hedge will be key. My barrister's view is that if the owner of the hedge removed the hedge and created an open boundary, they would then be acting unlawfully if they stepped across that boundary without my neighbours consent. A court is unlikely to find that the parties intended this.

Also, it was my barrister who identified the Charles v Beach & Another [1993] Lexis Citation 1810 case, not the other side - they were just rebutting it.

peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Fri Aug 09, 2019 3:16 pm

[/quote]

Thank you for keeping the forum up to speed with developments, all too often the OP stops posting and the final outcome is unknown to the readers of the thread.

Regards

As a post script you reposted (26/04/19) the plan from your neighbour's title showing the roadway in blue, yet on 08/08/18 you posted an extract of the neighbours title that describes " a right of way with or without motor vehicles at all times....over and along the road way shown coloured yellow on the plan....copy plan filed. You had earlier visited some websites which were not the genuine Land Registry site, did you get that plan from them...or where? Did you get the Land Reg plan downloaded? is the ROW land shown in blue or yellow. I'm just interested.
[/quote]

My pleasure as if it wasn't for this forum I may not have got to this point thus far.

My neighbour's road is coloured blue on his official land registry title.

peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Fri Aug 09, 2019 3:20 pm

IdefixUK wrote:
Wed Aug 07, 2019 9:11 pm
Contra proferentem. This seems to be a rule that applies in contracts and basically where the words of a contract could be taken in more than one sense then the courts will not side with the person who wrote, or suggested, those words. I'm no lawyer so I don't know if this can be applied to your case, or in which way it might be applied.
I would suppose that the person who sold the whole of the farm would have written the words, but I think that when a ROW is reserved the law treats it as though the purchaser of the servient land grants the easement.....so I don't know which side it could work for, or against. Hopefully someone out there will be able to enlighten us all.

Another thought came to me. We know that the whole was sold in two lots on the same day, with yours techically being the reserved land. I can see the logic of someone selling part of their property in reserving rights for their land for use in the future if they intended to stay put, but in this case surely the owner of the whole just wanted to sell for the best price he could get. He probably would not have been too bothered about protecting the rights of what techically became the reserved land.

Has your barrister been made aware that the sale was on the same day?
Also is the barrister aware that you found the reminants of an old fence in the hawthorn hedge to the otherside of the gate position.
Here is the exact instruction just on this specific point

Our client’s property and the Defendant’s property were originally part of the same title in land. However, the Defendant’s property was transferred out of the original parcel of land by way of a transfer dated 1 June 1998. This transfer landlocked our client’s property and the adjoining property, which are accessible from the main road only by way of the private access road known as xxxxxxx (“the roadway”). Our client’s property has the benefit of a right of way over the roadway, which is defined within the transfer dated 1 June 1998.

The barrister is unware of the of the old fence in the hawthorn hedge.

IdefixUK
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Re: New member and this must be a first for this forum

Post by IdefixUK » Sat Aug 10, 2019 8:07 am

Me
As a post script you reposted (26/04/19) the plan from your neighbour's title showing the roadway in blue, yet on 08/08/18 you posted an extract of the neighbours title that describes " a right of way with or without motor vehicles at all times....over and along the road way shown coloured yellow on the plan....copy plan filed.
You
My neighbour's road is coloured blue on his official land registry title.



From the written part of the title to the neighbour's land can you tell the significance of the part coloured pink?
Is there reference in writing to any area colured blue?
Or any other area on the plan of the neighbour which is coloured yellow?
(Out of interest).

Regards

peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Mon Aug 12, 2019 9:31 pm

IdefixUK wrote:
Sat Aug 10, 2019 8:07 am
Me
As a post script you reposted (26/04/19) the plan from your neighbour's title showing the roadway in blue, yet on 08/08/18 you posted an extract of the neighbours title that describes " a right of way with or without motor vehicles at all times....over and along the road way shown coloured yellow on the plan....copy plan filed.
You
My neighbour's road is coloured blue on his official land registry title.



From the written part of the title to the neighbour's land can you tell the significance of the part coloured pink?
Is there reference in writing to any area colured blue?
Or any other area on the plan of the neighbour which is coloured yellow?
(Out of interest).

Regards
So my neighbour's title plan (attached for ref) the road is coloured blue (blue is not referenced anywhere) but is referred to as yellow in the corresponding title register - not sure why this is though and convinced it doesn't make difference unless you disagree. Its interesting the wording is identical in my register also..

iii. A right of way with or without motor vehicles at all times and
for all purposes for the Transferors and their successors in title (in
common with the Transferees and their successors in title lessees
tenants workmen servants agents and the other duly authorised by them
so to do) over and along the road way shown coloured yellow on the plan
annexed hereto leading from the retained land to the public highway
SUBJECT TO the Transferor paying a fair and proportionate part of the
maintenance thereof."

Finally, the section highlighted pink is part of the same title so again unclear why this would be coloured differently, maybe an over enthusiastic (or bored) person preparing title plans.
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peacemaker
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Re: New member and this must be a first for this forum

Post by peacemaker » Mon Aug 12, 2019 9:44 pm

I have a more general question on process re relation to costs, specifically if we issue court proceedings because the 'without prejudice' letter has been rejected.

In any one's experience, would an insurer still be likely to waive costs incurred to date to settle outside of court once proceedings have been issued?

Reason for seeking clarification is just for my own curiosity and knowing we're at an impasse, why would anyone comply with a 'without prejudice' letter if they know they can achieve the same (still removing the fence and not paying my costs) by settling once court proceedings have been issued.

In other words the other side could well be calling my bluff and sit back and simply wait for the letter of claim to come through, as Mr Sheen highlighted some time ago, without any risk of being liable for their opponents costs.

Given that technically we're still as the pre-action stage it does feel like a long and protracted process and it could only now be the end of the beginning, if that makes sense!

mr sheen
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Re: New member and this must be a first for this forum

Post by mr sheen » Mon Aug 12, 2019 9:58 pm

Each side is liable for their own costs unless and until such time as a costs order is issued or costs are agreed between the parties.

ukmicky
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Re: New member and this must be a first for this forum

Post by ukmicky » Tue Aug 13, 2019 12:25 am

peacemaker wrote:
Mon Aug 12, 2019 9:44 pm
I have a more general question on process re relation to costs, specifically if we issue court proceedings because the 'without prejudice' letter has been rejected.

In any one's experience, would an insurer still be likely to waive costs incurred to date to settle outside of court once proceedings have been issued?

Reason for seeking clarification is just for my own curiosity and knowing we're at an impasse, why would anyone comply with a 'without prejudice' letter if they know they can achieve the same (still removing the fence and not paying my costs) by settling once court proceedings have been issued.

In other words the other side could well be calling my bluff and sit back and simply wait for the letter of claim to come through, as Mr Sheen highlighted some time ago, without any risk of being liable for their opponents costs.

Given that technically we're still as the pre-action stage it does feel like a long and protracted process and it could only now be the end of the beginning, if that makes sense!


Dangerous game to play because everything is pre action until formal proceedings are instigated and if you play the game for to long that pre action stage can suddenly without notice become formal proceedings. Formal proceeding also start before the claimant is served with the notice so he needs to be careful if that’s what he is doing.

However to answer your question Pre action costs are recoverable at the courts discretion once a claim form is issued by the court (which as I said is before it is served on the defendant) and once it gets to that stage and barristers are employed etc the costs will spiral and provided the claimants side has followed the pre action protocol they will stand a good chance of recovering them .

Once formal proceedings have started rules also then apply and they can’t just say you win and walk away and will need to settle if they wish to end it and if they settle costs will be a factor of any settlement.

It’s actually quite complicated as to what costs can be claimed but normally if an offer to settle is made your side will be entitled to your pre action costs and any costs relating to any proceedings if it got that far..

If the offer to settle is done under part 36 rules which it probably would be if damages are claimed for substantial interference it gets even more complicated as some costs are fixed and dependant on many factors .

If both sides settle if there are counter claims both sides can ask a court to determine what should be borne by who .
Any information provided is not legal advice and you are advised to gain a professional opinion

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