Neighbours using my garden yard but no easement on my deeds?

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pilman
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Re: Neighbours using my garden yard but no easement on my deeds?

Post by pilman »

Good Afternoon Petra.

Since you posted a direct question to me, I will do my best to explain what happens when land becomes liable to compulsory registration so that an application has to be made to Land Registry to have a registered title recorded.

There will be a large number of paper deeds provided showing how ownership of the property has passed from one owner to another.
The legal requirement is that a Root of Title has to be provided by a deed executed at least 15 years before the current conveyance that has just transferred ownership to the new owner making the application for first registration.

Normally the original deeds will go back for a great number of years giving details of each conveyance and mortgage that affected the property to provide clear evidence that the last transfer was made by the legal owner. It would be highly probable that ownership from Lord Stamford onwards could have been provided since that is how unregistered land had to be dealt with. There would be masses of deeds and documents known as the Deed Bundle.

Land Registry will only register a property once all the deeds have been examined and if satisfied with the historical deeds that is when a Land Registry title is issued with a Register of Title and a Title Plan available thereafter.

Any information from the earlier paper deeds that needed to be retained will be copied on to the Register of Title so that the register will record all of the details about the property.

The first part of the Register is the Property Register.
The first entry will identify the Legal Estate that is being registered using a postal address and referencing the title plan.

That is what was shown on the Register for 56, 58 and 60 when title GM86252 was issued.
1 (12.10.1976) The Freehold land shown edged with red on the plan of the
above Title filed at the Registry and being 56, 58 and 60 Waterton
Lane, Mossley.
The next item on the Property Register will record any Legal Interest over land that is the second property right recognized in Section 1 Law of Property Act 1925
For GM86252 this was recorded:
2 The land has the benefit of a right of way over the yard on the north
side of 54 Waterton Lane with or without animals and vehicles
Item 3 confirms that in May 1991 an area of land was transferred out of the title, while item 4 confirms that there are rights that still exist for the benefit of house number 60 on the retained land. That is a second Legal Interest over land that is within the title for GM86252.

All of that information would have been established by a Land Registry official looking at all the old deeds and transcribing the relevant grants and reservations.

The first entry on the Register showed that First Registration happened on 12th November 1976 when the new owner was Frank Johnson.

That meant that a paper deed prior to that date had shown that there had been a grant of the right of way over No.54.

Once first registration is completed all the paper deeds are returned to the solicitor who made the application for first registration.
An Official Copy of the Registry and Title plan is then the sole legal deed that confirms ownership and what rights have been granted to the Legal Estate identified in item 1 of the Property Register.

It is now common practice that once registration is completed the original paper deeds are disposed of because everything has been recorded on the Register of Title by Land Registry, although personally I never let that happen because I found it so interesting to read the paper deeds to try and understand the history of the property I was buying.

I am explaining that because even if the paper deeds have been retained by the Johnson family, they are private documents not available for anyone else to look at without the permission of the person holding them.

It may the case that the only document of title you have in your possession is the Register of Title and the Title Plan, but that is sufficient evidence that you are the owner with your name shown in the Proprietorship Register.

If I had been looking to buy one of the houses then the shape of the land to the north of the houses that showed no division between them would have made me investigate whether this was a common road that provided access to the backs of each of the properties.

So many times on this web-site it has been confirmed that when coal deliveries were an essential part of daily life, having a back access road where the coal sheds were located was the most probable reason why there was a common right of way for each of the properties in a terrace of houses.
A coal delivery was made using a horse and cart until such time as it was made using a lorry.
That would always require a vehicular access because a cart or a lorry is a vehicle.

Based on that fact alone that would be enough to make a property professional aware that there would be a very likelihood that a right of way existed over such a back access road.

The fact that you also know that a company owner the houses and the land behind the houses would also make it seem highly likely that vehicles access the land behind by driving over the land to the north of the houses.

After looking at the old-maps web-site I was able to copy parts of the Ordnance Survey maps to see how the buildings looked at various stages in time.

When I used an actual Memorandum dated 1962 that was just an example of how a Memorandum could make no mention of a right of way burdening the retained property when part was sold off.

The available evidence regarding the right of way is found on the Official Register of Title for the three houses.
That is what Land Registry transcribed and any decent solicitor would have spent £6 to see that register and title plan before telling you there is no evidence of a right of way, because it is not mentioned on your own register of title.
Wouldn’t the act of building a 3mt wall across the old road extinguish the easement of road access, is this not an act of abandonment?
In a court case about the re-use of a right of way after a bricked-up doorway in a house wall was re-opened for the first time in 174 years, so that the right of way could be used again, the court ruled that here was no evidence of an intention to abandon the right of way.

Please bear that in mind, when you also refer to a barrier between 56 and 58 when those houses are still in common ownership.

I/m unsure what other evidence you need to convince you that a right of way over the back road is a valid legal interest in favour of the neighbouring property at 56, 58 and 60, even though the right for 52 is very probably extinguished now that there is no reason for it.
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Petra77
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Re: Neighbours using my garden yard but no easement on my deeds?

Post by Petra77 »

You have certainly done a lot of work here on my behalf to help me to understand what’s going on, obviously I need to see the documents that you have seen, so I can see it for myself. I don’t know If you could tell me where I can access this information from, that you have so easterly found.
I very much appreciate assistance that you have given me. As I first time buyer I was not advised regarding any right of way other than the easement on my deeds relating to 52 now extinguished.

I would however, like to make a comment about the right of a car extinguished by abandonment. It’s regarding your comment that a right can’t be abandoned as it could always be put back into use at any time. This old road could never be reopened, as on the other side of the 3mt retaining wall, is a private property’s garden, this garden sits flush to the wall. It is literally a wall, then the land above this ( as the next ground level from the retaining wall is 3 metre up. How could this road ever be reopened?

The example you gave is a valid point in that the door was reopen after 175 years, which unless another building had been build up against the bricked up door, or the edge of the land flush to the wall with bricked up door way was sold, then yes it could potentially be reopened, regardless how long it had been bricked up.

This privately sold land flush to the wall which blocks the old road would have been developed after the act of conveyance that you speak of. I struggling to see how this road hasn’t been abandoned? obviously you disagree with me, but this is contradicts to my education in easement.

Just one note: you keep using my address and have used name, please can you use some kind of code instead.

Many Thanks
Petra77
Posts: 63
Joined: Fri May 22, 2020 8:29 pm

Re: Neighbours using my garden yard but no easement on my deeds?

Post by Petra77 »

Iv just re-read this and Iv mad a mistake regarding your point about the door opened after 175 years. It was about the land sold out side the bricked up door, yes I suppose it could be reopened even if the land outside the bricked up door was now in private hands. This is a bit of weird bit UK law though that probable needs updating. As the new owners would have to content with a door which lead straight on their private property? Under thos circumstances I would imaging that could be challenged. If the bricked up door way was opened onto same owners land, and they started using an old row that then went over someone’s els property, yeah that would make sense that this was still active.

Regarding the old road and the act of abandonment, the retaining wall leads to a garden ( 3mt up next ground level ) and then a short distance from this is a house also blocking the road? It’s hard to see how this could ever be reopened?

Many Thanks
Petra77
Posts: 63
Joined: Fri May 22, 2020 8:29 pm

Re: Neighbours using my garden yard but no easement on my deeds?

Post by Petra77 »

The new landowner 56/58/60 erecting a fence between 56 - 60 has the right to do as he owned the property’s, however it give some indication that he doesn’t won’t to use the right to a road, if this is still active. I think the best thing to do is to just talk to the new landowner explaining that I won’t to invest and improve property as right now it look like a scape yard, he might be happy to allow access by foot only, who knows. The right to drive from 54 - 56 seems a bit pointless in it’s present layout. Or maybe we can use the idea of the unregistered road that you suggested, seems playable. Anyway plenty to think about.
Petra77
Posts: 63
Joined: Fri May 22, 2020 8:29 pm

Re: Neighbours using my garden yard but no easement on my deeds?

Post by Petra77 »

@Pilman

I have noticed while using this site that every time I post an alternative points of view that’s this has consistently been dismissed, often in a hostile way. But at the end of the day - Easements come and Easements go.

Easements are created out of a of need a necessity, they are not granted from a point of connivence. It was necessary in 1962 that the house had access along the old unadapted road to access the allotment gardens. So when these were sold by Company S a right was granted to each house the right by car or pony. This is the easement your talking about.

But when this parcel of land was sold by the servant owner Mr F, and developed into the a housing estate, a 3mt retaining wall 3mt shift in ground level, blocking the road, house build at the entrance to the original plot. It’s obviously that Mr F has abandoned this right to this road. This would have been part of the deal when he sold it. Why would a developer buy a plot of land with an easement on it.

its utterly inconceivable that this road could ever be reopened. Easement that are extinguished are often still present on deeds. The easement that is present on my deeds for house 52 is related to the coal house. When the houses were modernised, and coal was no longer needed as a necessity, and the right to the coal house was abandoned by the act of removing it in full open view of the dominant owner. This act has extinguished that easement, however it’s still on my deeds.

I guess people can’t be bothered to have them removed, but that doesn’t mean they are still active. In Mr F case, he spent a considerable amount of energy when alive bulling and intimidating me into not closing the area of. Why would he bother, if he knew he had a water tight case?

This point of view is a valid one, and will no doubt be complete dismissed by the community on here.
Petra77
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Joined: Fri May 22, 2020 8:29 pm

Re: Neighbours using my garden yard but no easement on my deeds?

Post by Petra77 »

@Pilman


Just one other thing, you haven’t told me where I can get these documents so I can study them for myself.

Many Thanks
alyson
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Re: Neighbours using my garden yard but no easement on my deeds?

Post by alyson »

Petra77 wrote: Thu Jul 30, 2020 9:50 pm @Pilman

I have noticed while using this site that every time I post an alternative points of view that’s this has consistently been dismissed, often in a hostile way. But at the end of the day - Easements come and Easements go.

Easements are created out of a of need a necessity, they are not granted from a point of connivence. It was necessary in 1962 that the house had access along the old unadapted road to access the allotment gardens. So when these were sold by Company S a right was granted to each house the right by car or pony. This is the easement your talking about.

But when this parcel of land was sold by the servant owner Mr F, and developed into the a housing estate, a 3mt retaining wall 3mt shift in ground level, blocking the road, house build at the entrance to the original plot. It’s obviously that Mr F has abandoned this right to this road. This would have been part of the deal when he sold it. Why would a developer buy a plot of land with an easement on it.

its utterly inconceivable that this road could ever be reopened. Easement that are extinguished are often still present on deeds. The easement that is present on my deeds for house 52 is related to the coal house. When the houses were modernised, and coal was no longer needed as a necessity, and the right to the coal house was abandoned by the act of removing it in full open view of the dominant owner. This act has extinguished that easement, however it’s still on my deeds.

I guess people can’t be bothered to have them removed, but that doesn’t mean they are still active. In Mr F case, he spent a considerable amount of energy when alive bulling and intimidating me into not closing the area of. Why would he bother, if he knew he had a water tight case?

This point of view is a valid one, and will no doubt be complete dismissed by the community on here.
But that’s exactly what you are not seeming to grasp, easements do NOT come and go. Numerous knowledgeable people on this forum have explained this to you.. Pilman in particular needs to be congratulated on his patience and forbearance.
Asking the same questions and expecting a different answer is doomed to failure.
And before you start to accuse me of being condescending and insulting, I don’t care how deep your pockets may or may not be (I believe you supplied the information on your career choice) but few of us who haven’t won the Lottery recently would contemplate getting in a legal fight with someone with a large bank account and a possible vindictive streak.
MacadamB53
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Re: Neighbours using my garden yard but no easement on my deeds?

Post by MacadamB53 »

Hi Petra77,

easements do NOT come and go

this is the bit the you need to grasps.

the docs that pilman shared were obtained from “the old-maps web-site” (as quoted from pilman’s message to you).

all the best, Mac
Petra77
Posts: 63
Joined: Fri May 22, 2020 8:29 pm

Re: Neighbours using my garden yard but no easement on my deeds?

Post by Petra77 »

MacadamB53 wrote: Thu Jul 30, 2020 10:18 pm Hi Petra77,

easements do NOT come and go

this is the bit the you need to grasps.

the docs that pilman shared were obtained from “the old-maps web-site” (as quoted from pilman’s message to you).

all the best, Mac
So what your saying is an easement can never in law be extinguished?
alyson
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Re: Neighbours using my garden yard but no easement on my deeds?

Post by alyson »

Petra77 wrote: Thu Jul 30, 2020 10:34 pm
MacadamB53 wrote: Thu Jul 30, 2020 10:18 pm Hi Petra77,

easements do NOT come and go

this is the bit the you need to grasps.

the docs that pilman shared were obtained from “the old-maps web-site” (as quoted from pilman’s message to you).

all the best, Mac
So what your saying is an easement can never in law be extinguished?
At last!!!!! The penny drops!!!!!
Petra77
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Joined: Fri May 22, 2020 8:29 pm

Re: Neighbours using my garden yard but no easement on my deeds?

Post by Petra77 »

12.2.3 Abandonment
The person entitled to the easement must not only have stopped exercising it, but also to have “demonstrated a fixed intention never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else” (Tehidy Minerals v Norman [1971] 2 QB 528, per Buckley LJ).

This statement is taken from www.Gov.uk
MacadamB53
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Re: Neighbours using my garden yard but no easement on my deeds?

Post by MacadamB53 »

Petra77 wrote: Thu Jul 30, 2020 10:34 pm
MacadamB53 wrote: Thu Jul 30, 2020 10:18 pm Hi Petra77,

easements do NOT come and go

this is the bit the you need to grasps.

the docs that pilman shared were obtained from “the old-maps web-site” (as quoted from pilman’s message to you).

all the best, Mac
So what your saying is an easement can never in law be extinguished?
no, I’m not

I’m saying the law doesn’t consider an easement has been extinguished just because you say it should - an easement can only be extinguished if the dominant and servient tenements come under common ownership.

the releasing of an easement by abandonment - which is what I think you’re meaning - is not as straightforward as you suggest because the law at present has set the bar very high.

kind regards, Mac
span
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Re: Neighbours using my garden yard but no easement on my deeds?

Post by span »

What Mac is saying - do you realise there's a difference between extinguish and abandon?
pilman
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Re: Neighbours using my garden yard but no easement on my deeds?

Post by pilman »

In an earlier posting the register of title for the original property, which comprised the three cottages and the large parcel of land behind them was added as a PDF file to be read by anyone interested in this thread.

The right of way referred to in the Property Register allowed access past the back of No.54, to access all the land on which Nos. 56, 58 and 60 had been erected and to continue past those houses to provide access to the land behind.

When the land behind the cottages was sold in 1991 by the common owner, at that point the common owner would have to have granted a right of way over the land he was retaining. i.e. A right of way over the land north of Nos. 56, 58 and 60 which was part of the original access road to the back land.

It appears he did not do that, which is why the land that is now occupied by houses cannot be accessed using the old road past 54, 56, 58 and 60.

It did not have any effect on the right of way over the land behind No.54, because that continues to exist for the whole of the retained land on which the three houses are located.

So in that respect you are correct when you say that the land behind No.60 can no longer use the right of way over your land, because it cannot use the remainder of the road owned by the person who sold the back-land in 1991, but the right of way still exists over your back road to access the back of the three cottages.
cleo5
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Re: Neighbours using my garden yard but no easement on my deeds?

Post by cleo5 »

Petra,
I have re read all the posts ,yours and the responders, and am amazed at the lengths pilman has gone to to help you.He has produced it all for you and gratis!

Sometimes on websites folk take offence where none is intended. .
Some NHS workers , heads of trusts etc earn vast amounts and could well afford legal costs but others on a lower pay scale struggle to keep a roof over their heads.

Those replying to you just want to help and alert you to the fact that legal costs mount up at an alarming rate and what may seem straightforward turns into a nightmare not just financially but emotionally. In law even a word or the interpretation of a phrase matters.

Legal fees insurance may not be straightforward. They may not cover everything.
If they can wriggle out of their obligations they will.
Legal battles are like marriage" not to be entered into lightly....."

As for solicitors....some are downright bad and some are well informed and trustworthy and kind.

In 62 years of house ownership i never had a neighbour problem until 5 years ago and pilman, mac and the others gave me valuable advice on what to do.
So you know you can rely on them .

Easements can be erased / changed but only by good will on all sides. My son did just that when he purchased an old cottage a few years back.

Since there seems little chance of that happening in your case then maybe consider the possible solutions offered.
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