Resurrection of right of way.

Color
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Re: Resurrection of right of way.

Post by Color » Mon Nov 12, 2018 7:37 pm

Thank you for your replies.
I will answer your kind replies but in the meatime some picturest.

Now I've worked out how to add them , more will come.

I'll look up estoppel and what'sisname vs thingymbob thanks again.

Whats the kilobyte limit of pics?
170 front.jpg
170 back.jpg
Cheers Color
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cabbagewhite
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Re: Resurrection of right of way.

Post by cabbagewhite » Mon Nov 12, 2018 7:58 pm

Ok, that back alley doesn't look promising at all but on the other hand I think that porch might scupper any plans for the front vehicular access.

Was that terrace previously part of a longer street then?

Color
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Re: Resurrection of right of way.

Post by Color » Tue Nov 13, 2018 12:24 am

Estoppel. ........
In Lester v Woodgate, the Court of Appeal was asked to decide whether a right of way was still enforceable.

An express right of pedestrian access was granted in 1980 by one neighbour to another along a newly constructed ramp and strip of land, to replace a prior expressly granted right of way. By 1999, the strip of land had been turned into a car parking space by its owner, and the ramp was no longer useable as part of it had either collapsed or been removed. Between 1999 and 2000 the owner of the land which was subject to the right of way carried out further works to it, removing most of what remained of the pathway, and resurfacing the parking area. The adjoining owner with the benefit of the right of way did not object, even though the works constituted a substantial interference with the right of way. Both properties then changed hands and the property with the benefit of the right of way was acquired by the claimants. The claimants sought an injunction to re-instate the ramp and prevent parking, and also damages for not having use of the right of way while they had carried out construction works on their property.

The defendants, who had acquired the property which was subject to the right of way, argued that the claimants' predecessor in title had acquiesced in the destruction of the ramp and the path. Therefore, they argued, it would be inequitable for the claimants now to seek to enforce the 1980 right of way.

The court agreed. The defendants' predecessor in title had relied on the acquiescence of the claimants' predecessor in title by selling his property to the defendants without notice of any pending dispute about the right to use the parking spaces. Although proprietary estoppel was normally used in cases where the defendant acquires a right over the claimant's property as a result of the claimant's conduct towards the defendant, there was no reason why the principles of proprietary estoppel should not be applied to a case where the defendant was alleged to have committed an act of nuisance by interfering with an easement over his own land. In both cases the claimant's conduct relates to his property interests and the estoppel operates to bar the enforcement of the claimant's legal rights. Since the effect of the estoppel was to bar not only the grant of an equitable remedy but the enforcement of the right itself, the claimants' claim for damages was also unsuccessful.

Things to consider

It is notoriously difficult to show that an easement has come to an end. The court will be slow to assume that the benefiting owner has abandoned the easement, and normally an express deed of release is required. In this case however, the defendants based their case not on abandonment but on equitable estoppel. The case will be of interest to landowners and developers whose property may appear, in theory at least, to be burdened by an easement, but which cannot in fact be exercised owing to a change in the layout of the site.

However, the facts must support an estoppel. An estoppel may be found when it can be shown that the party standing by has induced the would-be defendant to believe that the right will not be enforced, and the defendant has, as a consequence, acted in a way which would make subsequent enforcement of the right unconscionable. This should be distinguished from mere delay in enforcing a right. While delay may operate to bar the grant of equitable relief such as an injunction, it will not extinguish the claimant's right altogether, so that a claim for damages may still lie.

Color
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Re: Resurrection of right of way.

Post by Color » Tue Nov 13, 2018 1:11 am

Hi IdefixUK,
I, like all the residents of 23&4, go along the front and back as whim dictates. Fronts more formal. Backyards are the only private areas for 1,2&3.

A sofa would be man handled down the back alley or barrowed or on a little trailer I have.

The alternative ROW would be most practical directly next to the ROW at present i.e. 8'6" from house fronts to 17 feet with a small resident area by their doors.

Although I thought this too close at first to give 12&3 a small front garden it is the most practical as the drop is not too steep close to the houses.

When you look at the small front porch at number one it does have the effect pushing people away from the living room window as they walk past to go to 2, 3 and 4 .
This gives a lot more privacy even when only pushing people away 3 ft from the window. It saves them gawping in.

1 2 and 3 have no interest in their front gardens, other than for other people to use, as they don't know what to do with them. Although the difference is extreme the nearest analogy I can think of is when the produce from the fields is being pushed into the river in the book The Grapes of Wrath in order to maintain the price of the produce and deny it to the impoverished work seekers going past. But ho hum. Whatever.

Can I assert my right to pass and repass are there any remaining width of the right of way and eliminate the step by rearranging the slope?

Chamberlain v linden? Not really. I'm amazed at the level of damages and costs, the fear of criminal damages when I can't even get the police to come out to my car actualy being stolen but they tell me not to go afer them because they'll arrest me (years ago, worse now). Can u fixit :( :)

Historically, Cabbagewhite, I think there were very few houses along the street apart from the 1906 building next door and a similar small row of cottages on the other side of that. Afterwards I think I just followed the street like everywhere else. Thanks all again.

IdefixUK
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Re: Resurrection of right of way.

Post by IdefixUK » Tue Nov 13, 2018 6:13 am

Have you looked at old aerial photos? These may give an indication that the ROW to the front of the houses was once used for vehicular use, and might confirm if the paving slabs are an original feature or whether there was a track there etc. When was that porch erected?
My own thoughts are, having looked at the photo, it does seem to me unlikely that cars have ever used that area to gain access to any of the houses. That doesn't mean that motorcycles, scooters and mopeds didn't!

In terms of the porch being an obstruction, I'm sure I read somewhere that the dominant owner could deviate from a blocked ROW so long as they remained on the land belonging to the serviant owner (I have been unable to find case law to confirm this).
If this is the case then you technically can go around the porch and then rejoin the "correct" ROW in the area of No 2. You could only deviate onto land of No.1.You would not be able to do this (ie go on the gardens) in the areas of Nos.2&3 because it would seem that the serviant land here is not in the ownership of either 2 or 3.

You seem to have implied that you are using your existing rights as some kind of a lever to achieve a different route for your use, could you explain where this route is and why you have chosen it?

Eliza
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Re: Resurrection of right of way.

Post by Eliza » Tue Nov 13, 2018 10:45 am

- One thing I couldnt make out from all this - was this passageway pretty much the way it looks now at the time you bought your house? = was your house accessible by car on that ROW at the time you bought your house? Can you give us the date of your purchase?
Apologies for not giving exact personal details in my posts - you never know who is reading....

Color
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Re: Resurrection of right of way.

Post by Color » Tue Nov 13, 2018 11:03 am

Once again thank you for your interest and reply Idefixuk.

I don't think it is practical or pleasant to drive along right next to the Houses. As you say that's a historical artefact for whatever reason.

I have read that rights of way do not include verging rights which is the right to overhang the edges such as opening of car doors or going round a bend. There's no verge on the front wall of a house.

The idea of driving up and down regularly in a car seems impractical but I could own a better car for social pleasures.

The back alley has been access for motorbikes/scooters which I pushed to the main road if coming/going late/early if they were noisy ones

Also, like yourself I have read about going round obstructions but not being able to go onto to third party land. However with or without ownership of 2 and 3 ROW I would imagine that it is not legal to continue the deviation across their land where they have no obstructions present so are not party to the problem.

The front gardens of 1, 2 and 3 will most likely be developed at sometime so putting the access at the bottom or a little away from the house front would retain the most value for 1,2&3. I have no interest in selling my front land as it is completely private.

I'll do a plan

The historical aerial photographs are a good idea, thanks

Regards Color

IdefixUK
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Re: Resurrection of right of way.

Post by IdefixUK » Tue Nov 13, 2018 11:28 am

So, if either 2or3 or both are disinclined to either sell some land to you or negotiate for a ROW for you to cross their land you are somewhat snookered. Certainly if I were in their shoes, and I could see that a developer might offer some big bucks for my land, I would not be entering into negotiations with you unless the total bucks achievable was bigger.

Color
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Re: Resurrection of right of way.

Post by Color » Tue Nov 13, 2018 6:09 pm

You're probably right IdfixUK

Here are the alternative routes for the front access
2018-11-13 16.49.33.jpg
2018-11-13 16.46.58.jpg
They can't build a gable side within 11 meters of the front of a house anyway.

Regards Color
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IdefixUK
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Re: Resurrection of right of way.

Post by IdefixUK » Tue Nov 13, 2018 8:11 pm

Thank you for posting the proposed routes.

You have said that you have no interest in seeing your front land as it is completely private. Perhaps so, but will your garden be over looked by any development on 1,2&3?

I wouldn't dig in my heels so deep on the non-selling front if I were you as the development of the land might well turn out to be the solution to your problem.... And I really do believe that you will have a lot of problems convincing anyone that you have now a right to take your cars over the land under your existing easement. That includes your neighbour all the way up to a Judge. I believe that you will need some really deep pockets and some specialised advice to achieve this if it is indeed possible. And even if you did achieve it you would likely have a miserable relationship with your neighbours, and all their relations and their friends etc etc. Who will see you as the bully at the end house who has started driving through aunt Mary's garden .

Try this for size.... You sell on some of your front land to a future developer at the same time as they purchase the fronts of 1,2&3.
The sale could be on the basis that they provide you with a vehicular right of way to your retained land across the new development, you might also be able to convince them that they should build a nice new garage/workshop with an inspection pit for you on what remains of your land.

Other posters might have other ideas for you which you might consider better suit your situation.

Eliza
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Re: Resurrection of right of way.

Post by Eliza » Wed Nov 14, 2018 8:32 am

Color wrote:
Tue Nov 13, 2018 11:03 am
Once again thank you for your interest and reply Idefixuk.

I don't think it is practical or pleasant to drive along right next to the Houses. As you say that's a historical artefact for whatever reason.

I have read that rights of way do not include verging rights which is the right to overhang the edges such as opening of car doors or going round a bend. There's no verge on the front wall of a house.

The idea of driving up and down regularly in a car seems impractical but I could own a better car for social pleasures.

The back alley has been access for motorbikes/scooters which I pushed to the main road if coming/going late/early if they were noisy ones

Also, like yourself I have read about going round obstructions but not being able to go onto to third party land. However with or without ownership of 2 and 3 ROW I would imagine that it is not legal to continue the deviation across their land where they have no obstructions present so are not party to the problem.

The front gardens of 1, 2 and 3 will most likely be developed at sometime so putting the access at the bottom or a little away from the house front would retain the most value for 1,2&3. I have no interest in selling my front land as it is completely private.

I'll do a plan

The historical aerial photographs are a good idea, thanks

Regards Color
Wondering still about these questions?
Apologies for not giving exact personal details in my posts - you never know who is reading....

Color
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Re: Resurrection of right of way.

Post by Color » Wed Nov 14, 2018 10:02 am

Eliza thanks for your question.
Any information , exprtise or opinion is useful. So "yes":)

IdfixUK, you're so right not to get entrenched in an adversarial position.

You've put some ideas forward that I hadn't thought of and are very good. Although the legal information is very useful, strategy is also important and the need to avoid being too reactive.

My neighbours, I got on with No.1 RIP. ( hospital to crem no funeral) No1 son will not return again. Irrelevant.

No2 temporary tenants. Owners only in it for money and development.( As far as I know. )

No3 took 10 years to say hello. 20 for full sentences. No relatives etc. I've ever seen. But certainly no problem. One can be thankful for quiet neighbours.

I'll put out, no I'll think about putting out a few letters.
Ditto I may do something visible to focus minds and to flag up for a later date should case law change!

I know No.2 wanted to buy No1s garden (not interested) a couple of years back and I said to No.1 son it could be financially better to sell the house split from the garden. The estate agents thought it not worth the trouble valued the lot at £110k and it sold on the first day. Its sale presence was only visible on the same day. Funny that.

I'd think I'd under priced anything that goes to quick.

I can always get an open top MG Midget that'll fit down my back passage. :D

Regards Color

MacadamB53
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Re: Resurrection of right of way.

Post by MacadamB53 » Wed Nov 14, 2018 10:37 am

Hi Color,

I'd think I'd under priced anything that goes to quick

or you’d know it had been sold below market value because that was your intention as a speedy sale was your priority...

£110k now, or £130k in six months time? I need money “like yesterday” so...

kind regards, Mac

Color
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Re: Resurrection of right of way.

Post by Color » Wed Nov 14, 2018 3:29 pm

MacadamB53 said......

" £110k now, or £130k in six months time? I need money “like yesterday” so..."

So true. No1 son caught flu on the flight over and is not enamoured with the U.K.

Thanks, it's easy to think people are doing things to wind you up. On the other hand it would help to talk rather than think you can cut and run, burying your head in the sand.

Cash developers etc will complete without problem, mortgagees not so.

Regards Color

IdefixUK
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Re: Resurrection of right of way.

Post by IdefixUK » Wed Nov 14, 2018 7:31 pm

You will need to consider your own tactics, but I don't suppose there is any thing stopping you from applying for outline planning on all of the gardens. ( you can apply for planning on land that you don't own provided that you give notice to the owners...so keep your plans off the ROW land behind Nos. 2&3 because you don't know who owns that land). If successful that would increase the value of the land and rather than put the cat amongst the chickens, it may put the chicken amongst the cats. The neighbours might be tempted to sell if the increase in value is sufficient. You would need to include part of your own land in the development so that you have a negotiation lever with the developer to get the new, and useable ROW to your land . I don't know about design of such devepments but perhaps the garages for new houses could be on your current garden land, that would preserve a good deal of your privacy.
Any joy with the aerial photos?
Do you know anyone with a modified, but street legal Harley D, who might want to visit you a few times using the ROW across the front of the houses? If needs be that could be a way of "waking up your neighbours" to the fact that you have a vehicular ROW across that land. No need to suggest that it might be restricted to m/cycles at this stage. Personally, I'd rather have cars passing in front of my house than motorcycles.

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