ROW abuse???

IdefixUK
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ROW abuse???

Post by IdefixUK » Fri Feb 09, 2018 8:34 pm

Hello every one.
I would welcome your advice and comments regarding the following scenario.

A large house and grounds (in England) were divided up in the 1980's into separate dwellings. There is one quite large area of land which is used to access all of these properties and their respective garages.The garages are a short walk (the furthest being say 30 metres)from the front doors of the houses using the same road. Each of the houses has a right of way at all times and for all purposes across the whole of the land retained by one owner. There is, and has been since the first property was sold, an access road/track running across the land. This roadway gives access to the properties and garages. Effectively it is a single track road running through a garden area with large established trees, scrubs, and flower beds and lawned areas all of which are tended by the servant owner.
One owner of a dominant tenement has suggested that they have the right to drive across the flowers, shrubs and lawn in order to access their property, by this they mean to be able to drive onto their own garden area which abuts the retained land, so as to create a parking area there. It is clear that this arrangement was not the intention of the parties at the time of the express grant because I am still in contact with the original grantor he is willing to write a statement of truth to the effect that the intention was that the dominant owners should stick to the existing road ways, he is able to confirm that he walked the route with all the original purchasers of the properties in advance of the sale, and told them this intention and that they all agreed (albeit verbally) to these terms. The houses have changed hands since and so it is no longer the original grantees who wish to drive over the garden area. My questions are
1) have the new dominant owners have a right to drive cars off the roadway and onto the garden areas (if the road way above is not obstructed)?and..
2) if so have they the right to make up the garden areas to be suitable for the passage of vehicles, eg. with concrete, tarmac or gravel?

MacadamB53
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Re: ROW abuse???

Post by MacadamB53 » Fri Feb 09, 2018 9:33 pm

Hi Idefixuk,

1) have the new dominant owners have a right to drive cars off the roadway and onto the garden areas (if the road way above is not obstructed)?and..
2) if so have they the right to make up the garden areas to be suitable for the passage of vehicles, eg. with concrete, tarmac or gravel?


yes to both if that land was identified as being burdened with the RoW in the wording of the deed and accompanying plan.

kind regards, Mac

stufe35
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Re: ROW abuse???

Post by stufe35 » Fri Feb 09, 2018 9:49 pm

I believe It is possible as there is some case law where this has been successfully argued, but it would depend on the exact wording of the deed, and any associated plans, and depending how detailed these are, what the layout and intention where at the time of the grant.

IdefixUK
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Re: ROW abuse???

Post by IdefixUK » Fri Feb 09, 2018 9:52 pm

Mac.
Thanks for your swift reply.
So are saying is that
1) The "intentions" of the original parties at the time of the express agreement now count for nothing?
2) If the dominant owners wish to drive anywhere on the land, the servient owner is obliged to cut down 100 year old trees and level the land to make this possible for them, or just has to stand by and allow the dominant owners cut down the trees etc. Even though they can easily access their properties by the roadway.
That just doesn't sound right to me.

IdefixUK
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Re: ROW abuse???

Post by IdefixUK » Fri Feb 09, 2018 9:57 pm

hello stufe35
Thanks for your reply to my query. If you can remember the case you mention I would be grateful for it's name so that I can look it up on the net.
Your reply seems more hopeful than that given by Mac as it seems to allow some reference to the intentions of the parties at the time of the express grant.

IdefixUK
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Re: ROW abuse???

Post by IdefixUK » Fri Feb 09, 2018 10:11 pm

It just seems that if the land involved was a 100 or 200 acre field with a track across one corner, and the field owner granted an easement for someone to access their house at the other end of the track. The Title could mention a ROW across the field marked on the plan, and the whole of the outer boundary on the field be marked in red or blue on the plan (so infact one could say that there is a right of way across the field). Does this really mean that the dominant owner can drive ALL over that field destroying crops as he goes? Or is he restricted to use the track (unless the track is blocked)?

Collaborate
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Re: ROW abuse???

Post by Collaborate » Sat Feb 10, 2018 8:11 am

Please post the precise wording of the grant.

arborlad
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Re: ROW abuse???

Post by arborlad » Sat Feb 10, 2018 8:33 am

Collaborate wrote:Please post the precise wording of the grant.


+ a sketch or plan of the layout. Does the person who wishes to abuse the ROW own land that abuts the track?
arborlad

smile...it confuses people

MacadamB53
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Re: ROW abuse???

Post by MacadamB53 » Sat Feb 10, 2018 10:19 am

IdefixUK wrote:Mac.
Thanks for your swift reply.
So are saying is that
1) The "intentions" of the original parties at the time of the express agreement now count for nothing?
2) If the dominant owners wish to drive anywhere on the land, the servient owner is obliged to cut down 100 year old trees and level the land to make this possible for them, or just has to stand by and allow the dominant owners cut down the trees etc. Even though they can easily access their properties by the roadway.
That just doesn't sound right to me.
I think my swift reply made sense, but maybe not...

...you seem to be asking whether property A has a right to be accessed via some land on property B?

and I’m saying it most certainly does if such a right was expressly granted/reserved in a deed.

which bit isn’t making sense?

kind regards, Mac
Last edited by MacadamB53 on Sat Feb 10, 2018 10:43 am, edited 1 time in total.

arborlad
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Re: ROW abuse???

Post by arborlad » Sat Feb 10, 2018 10:37 am

IdefixUK wrote: My questions are
1) have the new dominant owners have a right to drive cars off the roadway and onto the garden areas (if the road way above is not obstructed)?and..
2) if so have they the right to make up the garden areas to be suitable for the passage of vehicles, eg. with concrete, tarmac or gravel?


Based on what we have so far, both seem unlikely.
arborlad

smile...it confuses people

IdefixUK
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Re: ROW abuse???

Post by IdefixUK » Sat Feb 10, 2018 3:45 pm

Thank you all for your differing opinions and continued interest.
I would prefer not to post a sketch of the layout by so doing the premises might well be identified. By I think that I can answer in words what you need to know at this stage.
The road way/track leads to the area infront of the front doors of all of the five properties concerned, It is possible to drive along this bit and is considered by the serviant owner to be ok for all of the owners of the dominant properties to use with cars for access for loading and unloading before going to their garages to park.
The servant land extends beyond the end of the track and is bounded first by the exterior wall of the last dominant property, and after that by the garden of that last house. There is a footpath which extends beyond the end of the road up some steps and leads to a small gateway giving access to the gardens of that dominant property.The boundary length of this garden, where it meets the serviant land/garden is technically sufficiently wide to access by car. There is no way that physically the track could be extended to be made wide enough for cars due to the steepness of the land at this point.The track comes to an abrupt stop in effect. I think that the owner of the end property intends to drive his car(s) onto his land via a new route across the gardens and lawned area which has NEVER been driven on before to access that land, and certainly since the 1980's and very probably never in history. Using such a route would involve the demise of several established shrubs.
The wording on the title reads as follows "Together also with a right of way at all times and for all purposes over the land coloured....." It then rambles on about access and rights to connect and repair services under and over ground.
It is interesting to note that it does not specifically mention cars or vehicles, but I assume that this was the intention of the grant because each of the five houses has a garage. This raises a further question.
Since the intention of the grant was to allow access to the garages (and to access the front doors) does this imply that the vehicles using the track should be of a size no larger than that which would enter the garage doors?

IdefixUK
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Re: ROW abuse???

Post by IdefixUK » Sat Feb 10, 2018 3:51 pm

In response to Mac's point in particular. ALL of the properties have access to their front doors both on foot or by car. The owner of the end property has access to her garden via a foot path which extends from the end of the vehicular access and up some steps , all of these established access routes are over the serviant land.

IdefixUK
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Re: ROW abuse???

Post by IdefixUK » Sat Feb 10, 2018 3:57 pm

In response to Arborlad in particular. The boundary between the garden of the dominant property and the serviant land is not near the existing vehicular track.

mugwump
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Re: ROW abuse???

Post by mugwump » Sat Feb 10, 2018 4:35 pm

IdefixUK wrote:Together also with a right of way at all times and for all purposes over the land coloured....."
Is the "land coloured..." the whole of the land or just the road?

IdefixUK
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Re: ROW abuse???

Post by IdefixUK » Sat Feb 10, 2018 5:07 pm

The coloured mark goes all around the whole of the serviant land, not just the track (which is on that land). What I don't see is that they already have a right of way which gets them to their house and garages, and indeed to the garden of the end house (although access is on foot to that bit) Is the serviant owner compelled to accommodate any route across the land that the dominant owners may choose to follow at any particular time on any day of their choosing. And especially as a good deal of the land would be practically impossible to drive over as there are buildings and walls and trees etc on that land, as well as the topography of that land would make driving impossible without regrading the land to a significant degree. If the above were true and the serviant land is indeed burdened to that degree, would that make the whole easement invalid as it would leave the serviant owner with no effective use of that land. It would have to be kept clear at all times just in case the dominant owner fancied a spin in her car.
ie,does the right of way exist simultaneously across every square inch of the land?

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