Conflicting interests PROW

melbatoast
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Re: Conflicting interests PROW

Post by melbatoast » Thu Jun 22, 2017 5:33 pm

I should have put Restricted Byway for clarity :oops:

pilman
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Re: Conflicting interests PROW

Post by pilman » Thu Jun 22, 2017 5:42 pm

Oops I got on the wrong BOAT.

Never did claim to be infallible :oops:

melbatoast
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Re: Conflicting interests PROW

Post by melbatoast » Fri Feb 22, 2019 10:23 am

<t>Hello all,<br/>
<br/>
It has been a while since I asked and gained some valuable advise here.<br/>
<br/>
We had pre court wranglings between solicitors with my neighbour about the parking of my vehicle (s) on the Accessway which I own, but my neighbour has a right of way over (never in dispute of that fact).<br/>
<br/>
Sadly, this got to the final stages, a week before the court hearing, before mediation was offered by my neighbour. Their panel solicitor, from a well known insurer was completely gung ho from the start, imo, about what I could and couldn't do as Servient owner of the land. This led to my neighbour thinking and asking the court, in their prayer for relief, not to allow me or my agents, or any others to place anything whatsoever or person(s) on the Accessway at anytime that would substantially interfere or otherwise obstruct any part of the way.<br/>
<br/>
I sought counsels advise and was advised that I had a 65% chance of successfully defending their claim. This was mainly to do with the fact that my neighbour was able to pass and repass along the length of the way, but also their is a covenant in place stating their entry rights are to be used causing as little inconvenience as practicable to the land owner and other users of the Accessway.<br/>
<br/>
Anyway, we had our mediation on site, in our own homes, with our solicitors present. It became evident to all that with my vehicle(s) in situ that they had no inconvenience in entering their property ( this point had been displayed by my expert Surveyor that the area available to them was wider than any supermarket carpark and that two large vehicles could pass one another, but their Surveyor unhelpfully and beyond his remit, which he later admitted, stated my vehicles were obstructions in breach of the right of way). <br/>
They tried to argue that they were scared that they might hit my vehicle when pulling towards it, before reversing into their driveway, but it was noted they could easily widen their gate opening. They tried to say that when I pulled my vehicle forward to drop the back for loading that I blocked the way, even though they have only ever taken photos of me doing this from an upstairs window, rather than from a vehicle that they needed to leave or enter in.<br/>
Basically they thought they could stop me from doing anything at all on the Accessway.<br/>
Well a good firm solicitor, backed by counsels advise and a mediator who knew his stuff have now got us a Tomlin Order, with a Deed of Variation, marking out exactly where I park my vehicles on the Accessway (pretty darn close to Pilmans advise). I have conceded that any large vehicles that could/ needed/wanted to get onto their drive that couldn't do so with my vehicle in situ will be moved with at least 24hours prior written notice from them and that their scaffolder may drop off from the Acessway onto their property and park whilst erection of scaffolding takes place, so long as they do not obstruct me nor other users of the way.<br/>
<br/>
There has been approximately 50k spent on this squabble, I now have neighbours who cannot look me in the eye. They achieved nothing more than they had before they started this whole hideous experience, well maybe a better understanding of how the Accessway can lawfully be used??? I have a deed confirming that I can park where I do which possibly enhances my property and they are left feeling pretty uncomfortable and possibly with a devalued property???<br/>
<br/>
Never worth the angst if you can do what your right conveys, imo. <br/>
<br/>
Although this didn't go to court I still think it may help some people realise what can happen in cases like this, hopefully before they become too entrenched!<br/>
<br/>
Thanks to all on Gardenlaw who gave advice.</t>

peacemaker
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Re: Conflicting interests PROW

Post by peacemaker » Fri Feb 22, 2019 1:05 pm

Thanks for posting the outcome and congrats. May I enquire whether you or the claimants had legal expenses cover or did you self fund costs. I assume the mediation results prevented litigation or do you think it was the escalating costs?!

melbatoast
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Re: Conflicting interests PROW

Post by melbatoast » Sat Feb 23, 2019 9:13 am

Thanks Peacemaker.

We were both insured.
I believe the reason it settled is because they had a locum solicitor 'helicoptered in' who had more of an understanding of the law surrounding rights of way ( their previous solicitor left the company).

They really didn't gain anything that they didn't have beforehand, which is bizarre as they were the claimants!

We agreed, or our insurers agreed on a 'drop hands' settlement.

ukmicky
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Re: Conflicting interests PROW

Post by ukmicky » Sat Feb 23, 2019 6:29 pm

The most stupid thing about this is property law which includes easements is one of the 7 foundation modules all solicitors have got pass on there way to a law degree ,so the clamaints solicitors should automatically had the required knowledge and should not have allowed it to get as far as it did.

This is more about incompetent solicitors rather than bad neighbours
Any information provided is not legal advice and you are advised to gain a professional opinion

siteone

Re: Conflicting interests PROW

Post by siteone » Sun Feb 24, 2019 9:56 am

ukmicky wrote:
Sat Feb 23, 2019 6:29 pm
The most stupid thing about this is property law which includes easements is one of the 7 foundation modules all solicitors have got pass on there way to a law degree ,so the clamaints solicitors should automatically had the required knowledge and should not have allowed it to get as far as it did.

This is more about incompetent solicitors rather than bad neighbours
I think the two easements caused a junior solicitor to miss the situation. Thats caused the problem here, which is different to other easements. Personally, whilst there will as in all parts of life, be more efficient solicitors, who were listening to the lecture that day. However having two easements on one property should hvae been addressed when it happened at the start, not during these proceedings. Or even when properties were sold previously.

melbatoast
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Re: Conflicting interests PROW

Post by melbatoast » Mon Feb 25, 2019 8:49 am

ukmicky wrote:
Sat Feb 23, 2019 6:29 pm
The most stupid thing about this is property law which includes easements is one of the 7 foundation modules all solicitors have got pass on there way to a law degree ,so the clamaints solicitors should automatically had the required knowledge and should not have allowed it to get as far as it did.

This is more about incompetent solicitors rather than bad neighbours
I must admit that at times I felt that the crux of the matter was being completely ignored by my neighbours solicitor. I chose to use my own firm of solicitors, our solicitor did point out to theirs all the points that the barrister picked up on although, he did miss the covenant about them causing us and other users as little inconvenience as practicable. Maybe an earlier barristers opinion, before proceedings started would have helped, but my solicitor followed my insurers protocol there.

Thing is, wouldn't my neighbour also have had advise from a barrister? Can we blame this just on the solicitors - shouldn't the advise on both sides given more of a directive?

To a certain degree I think you are right ukmickey, but my neighbour stated clearly to me, before he sent his letter of claim, that his conveyancers had told him that nobody could use the Accesway to park - incidentally, the same firm who initially sent the letter of claim for my neighbour. So you see, my neighbour was like a bull in a china shop about what I could and couldn't do because his solicitor had told him so. I think that first letter kind of set the tone and the panel solicitor followed like a sheep. Either that or my neighbour bullied them into acting, which is unlikely, I'd of thought?

As for the other users of the way, neither parties solicitors really even considered them and when the order was drawn up I had to point out that any deed of variation could not ignore their rights and so a paragraph was added to that intention. But as they can also fully exercise their right with my vehicle(s) parked they would only prevent my neighbour from Accessing his new gateway while they use their right, which is something they are going to have to accept.

It would have been nice if the vendor had made my neighbour aware of the other users of my land, but he had no legal requirement to do so. Let's face it, he was maximising his profits!

melbatoast
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Re: Conflicting interests PROW

Post by melbatoast » Tue Apr 09, 2019 12:32 pm

Hi All

I'm hoping that some of you may be able to guide me in the right direction.

I previously wrote about the Tomlin Order, which has been signed off by the Judge. My solicitor has drawn up the Deed of Variation, for submission to Land Registry and the Surveyor has marked out the parking area onto the agreed plan that each party signed along with the Tomlin Order. My neighbour has now come back to my solicitor requesting that all the Surveyor's measurements, from the agreed plan be removed, apart from the parking area. My solicitor has responded by suggesting that measurements are an integral part of the plan that was agreed with the Tomlin Order and that measurements, to two decimal points, which the parking area requires, will give clarity to successors in title in the future.

Does the fact that my neighbour agreed to use my Surveyor's plan, which we both had to sign, mean that this interpretation of the area should be used?

I'm sure it could go to and fro between solicitors and end up costing a small fortune, so would be grateful to hear others thoughts, please.
.

siteone

Re: Conflicting interests PROW

Post by siteone » Tue Apr 09, 2019 4:19 pm

Seems to be a bit odd that he feels only parking measurements should be on there.

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