right of way

missmakepeace
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Re: right of way

Post by missmakepeace » Thu Nov 28, 2019 9:28 pm

Hello again,
Another letter from our neighbour's law firm, received today. Please note I have copied it exactly as worded and written.
Further to your letter dated ******, our clients do not disagree with the right of way. In fact we have set this out to you in our previous correspondence. You have willfully disregarded the meaning of this and the way in which it is worded. We would reiterate that the right of way is for the following only - the use and enjoyment of the property but not for any other purpose whatsoever. Put simply, if you were carrying out renovation and repair on your barn then this would fall under the right of way and its usage. However you and we are both aware that this is not your intention. Your intention is to develop the barn as a holiday let. On that basis, that has a commercial implication as a business and does not fall under the right of way use and enjoyment of your property. In fact our clients would go so far as to say that is this in fact any other purpose which is strictly prohibited by the right of way.
As you are aware we have seen your planning application to the local planning authority. Our clients are fully aware that the first condition of any development of the barn into a holiday let is put some form of gravel or other aggregate on the surface of the right of way. Our clients therefor do not believe that you are intending simply to repair and renovate your barn but that you intend to develop it for a holiday let which has a business purpose and that is the reason you wish to apparently maintain the surface of the right of way. In addition to this our clients would make it clear that for the past five years there has not been an issue whatsoever with the use of the right of way in its current form. If you intend to use it as set out for vehicular access for the use and enjoyment of the property but not for any other purpose whatsoever, then there is no requirement whatsoever to maintain the right of way in the way you have suggested. There are not untidy ruts and there is no need for the prevention of further deterioration as the grass recovers extremely quickly once rainy weather stops.
You have stated in your letter that you will not tolerate interference with your right of way. Our clients are not interfering with your correct use of the right of way whatsoever. They do not intend to interfere with your correct use of your right of way however if there is a circumstance which exists as it does here where you are not intending to use the right of way as prescribed, our clients are well within their rights to take issues with this and to ensure that you do not use the right of way for another purpose which is strictly forbidded by the right of way.
You have stated that you wish matter to be resolved amicably and without delay. Our clients are more than happy to be amicable in these circumstances but will not stand for you trying to mislead them about your intentions regarding the use of the right of way and by extension the use of the barn.
Our clients position has been made perfectly clear and any attempt to add aggregate or other to the right of way will result in a court application for an injunction, without further notice to you, to prevent you from doing.

We applied the aggregate two weeks prior to receiving this letter.

MacadamB53
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Re: right of way

Post by MacadamB53 » Thu Nov 28, 2019 10:50 pm

Hi missmakepeace,

what a load of guff.

although the threat of court action can be alarming, I’d just bin and ignore.

warm regards, Mac

IdefixUK
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Re: right of way

Post by IdefixUK » Thu Nov 28, 2019 10:56 pm

The letter you quote has some hallmarks of having been put through translating software such as googletranslate. Perhaps the law firm is outsourcing the authors of its letters, as no doubt they are entitled to do, that might expain the delay following the road repairs and the receipt of that letter.
It seems that they do not believe that having a barn converted to a holiday let is something that you would enjoy. I would certainly "enjoy" having a building on my land that I could "use" to generate extra income.
It is my thinking that all of your land has the benefit of the Right of Way, so that includes the barn. The Right of Way can be used by anyone authorised by you, so that would include anyone coming to rent the barn from you.
I believe that the part of the wording "but not for any other purpose whatsoever" relates to your use of their land, not yours. So it would prohibit you from parking on the ROW, and it would also prohibit you from picnicking or playing tiddlywinks on the ROW. It cannot restrict what you do on your own property (unless you build a skyscraper full of flats on it, or a scrapyard with heavy lorries entering and leaving every few moments, and they claim excessive user of the ROW). Having a barn convertion to a single holiday let is not going to trigger a successful excess user claim, in my opinion.

Regards
Last edited by IdefixUK on Thu Nov 28, 2019 11:02 pm, edited 1 time in total.

cleo5
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Re: right of way

Post by cleo5 » Thu Nov 28, 2019 11:02 pm

Missmakepeace,
Is there any reference in your deeds/ conveyance to the use of the right of way for business purposes?
If there is then they may have a point.

pilman
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Re: right of way

Post by pilman » Fri Nov 29, 2019 12:43 am

See below
Last edited by pilman on Fri Nov 29, 2019 12:52 am, edited 1 time in total.

pilman
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Re: right of way

Post by pilman » Fri Nov 29, 2019 12:51 am

1. At all times hereafter
2. by day or night
3. with or without vehicles of any description
4. for all purposes connected with the use and enjoyment of the property
5 but not for any other purposes whatsoever
6. to pass and repass over the track over the Grantors land
7. such track being shown coloured yellow on the plan A

8. SUBJECT nevertheless and reserving to the Grantors and their successors in title ********* at any time to erect renew or maintain a gate or gates across the said track at the points marked A and B on plan A such gates not being locked nor erected or maintained so as to impede or obstruct the free use and enjoyment of the right of way hereby granted.
Anyone attempting to analyse the words used to define the right of way would need to identify the 7 matters that are set out quite clearly in the deed of grant.

Number 5 is, as was explained by an earlier poster, an indication that your property cannot use the neighbour's land identified coloured yellow on Plan A for any purpose other than passing and repassing over it with vehicles at ant time of the day and night to gain access to the whole of your property that was identified at the time the deed was executed.

I cannot think that the interpretation given in the recent letter to you will ever receive approval if this matter was to be the subject of legal proceedings.

The earlier posting where the legal authority regarding rights of way was referred to should be brought to the attention of whoever wrote that letter.

missmakepeace
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Re: right of way

Post by missmakepeace » Fri Nov 29, 2019 7:33 am

Thanks again for your replies. Because of the recent wet weather the aggregate we applied a fortnight ago has sunk into the mud and we have more to put down to be able to gain traction in wet weather.
We only use the right of way to pass and repass, however our neighbours allow professional tradesmen working at their property, to park and obstruct it. They also have logs (used for fuel) delivered on a regular basis during the winter months. This obstructs our right of way for anything up to an hour, until they stack them in their log store. If they are out at the time of delivery, the logs obstruct the right of way for hours. Our vehicles have been blocked in during these periods.
I think it's time we brought in a legal firm to try and put this matter to rest.

mr sheen
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Re: right of way

Post by mr sheen » Fri Nov 29, 2019 8:03 am

That letter was not written by a solicitor who understands the law....it is rambling and concedes key points.
The letter accepts a right of way to renovate the barn! If they wish to dispute that the letting of it as a holiday let as a commercial enterprise is outside of the constraints of the ROW then they would have to do that if and when such activity occurs. A mere ‘intention’ cannot be relied upon.

This issue could be heading to court but you can continue to deal with it yourself yet if you want to avoid costs. You need photos of the log deliveries and them left to interfere with your ROW. If you have a photo of this I would include it with the reply.

I think the letter requires a response and mine would be....

Thank you for your letter acknowledging our vehicular right of way and our right to use the vehicular right of way to renovate our barn.
We trust that there will be no further interference by your client of our vehicular right of way and our right to maintain it suitable for vehicles. As indicated previously we will not tolerate any interference with our vehicular right of way.

stufe35
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Re: right of way

Post by stufe35 » Fri Nov 29, 2019 10:03 am

In their letter they say they will apply for an injunction if you apply any gravel.

You say you applied gravel before you received the letter (presumably whilst it was in preparation), you say you have applied more gravel since.

Any sign of the injunction they threatened ?

mr sheen
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Re: right of way

Post by mr sheen » Fri Nov 29, 2019 10:26 am

Injunction??? Hot air!!!!!!!
They would have to apply for an injunction to prevent the vehicular use of a acknowledged vehicular right of way.....just not going to happen.
It may even be useful if they do issue particulars of claim...especially from the author of the rambling letter...will enable a coherent defence to be put forward which may even resolve it.
However if a real solicitor looks at the letters and the case being put forward there is very little chance it will progress to a claim.

stufe35
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Re: right of way

Post by stufe35 » Fri Nov 29, 2019 10:38 am

Also did they dig up the gravel and put it back on your land as threatened. ?

missmakepeace
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Re: right of way

Post by missmakepeace » Fri Nov 29, 2019 12:22 pm

Hello,
We will not proceed as yet with appointing a solicitor.
Our neighbours did not dig up the gravel and it has now sunk into the mud following the persistent rain. Our four wheel drive just manages to negotiate the slight incline, my husbands van does not. Hence we have to keep this on the street.
We do have a couple of photographs of the logs and tradesmen vehicles blocking the right of way.
We are thinking of replying and mentioning the obstructions. We will also say we have photographs. We also have videos and photographs of the muddy ruts and our vehicles struggling with the muddy conditions on the right of way.
We do not dispute the grass will recover to a certain extent, during the summer months. However we need to use this right of access all year round.

Thanks everyone.

arborlad
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Re: right of way

Post by arborlad » Fri Nov 29, 2019 12:48 pm

missmakepeace wrote:
Fri Nov 29, 2019 12:22 pm
We do not dispute the grass will recover to a certain extent,



This is nonsense, grass is not a suitable surface for a vehicular Right of Way which is at all times and for all purposes - is there a hard surface underneath the grass?
arborlad

smile...it confuses people

mr sheen
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Re: right of way

Post by mr sheen » Fri Nov 29, 2019 1:11 pm

When replying to a legal letter it is prudent to be concise and restrained in content so that words used do not come back to haunt you. The letter from the neighbour’s ‘legal rep’ is a case in point...it actually acknowledges your right to use the vehicular ROW to renovate the barn...this was a mistake on their part it should have been left ambiguous.

You can post a proposed response here and a range of people will comment on it and/or you could PM some individuals who might be able to help which will give you a range of comments from those who choose to reply.

stufe35
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Re: right of way

Post by stufe35 » Fri Nov 29, 2019 2:03 pm

At the moment you are trying to understand your legal position ; the case law that Pilman posted a while back is absolutely the relevant case law and the wording of your right of way helps reinforce this and is good wording. Your neighbour also is very possibly on journey of realisation....their start point is one of they can tell you what to do when you are on their land...a reasonable assumption until you start to understand rights of way. In reality your rights to use the right of way and ensure it is fit for purpose trump their rights as owners of the land, ie anything they wish to do with the land they own must not frustrate your rights to use it. The letters you have received i know are scary, but the reality is as others have said they contain nothing but bluff and bluster. Hopefully your neighbours are reasonable people and as they get further into this they will understand your rights and realise they have no choice but to back down. The evidence..no removal of gravel and no injuction seem to support this. Lets hope they have some common sence.

On a practical note simply putting gravel on top of grass is not going to work. You really need to dig out the topsoil to a decent depth perhaps 200 to 300mm might do and replace with hardcore , or concrete or whatever....i realise this is easier said than done when your neighbour is providing resistance.

Ulitimately you are in the right. Make sure you have good photos and records of the area....if your neighbour is an idiot like mine you will have more trouble before they back down. However from my experience and knowledge if you have posted all the relevant information , then you are in the right and will win through...the journey could be rough yet though. Have you checked to see if you have legal expences cover through your house insurance ? Solicitors are painfully expensive. See how your neighbours solicitor has happily taken their money to write you a scare mongering letter rather than advising them on the relevant case law and their position as servient owner and sending them away. He is quite prepared to write a letter attempting to scare you into doing what they want. You will note though it is very cleverly worded to avoid actually saying you are doing anything wrong. How deep are their pockets ? and how deep are yours ?
Last edited by stufe35 on Fri Nov 29, 2019 2:53 pm, edited 1 time in total.

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