Crossing a general boundary = trespass?

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geordiepete
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Re: Crossing a general boundary = trespass?

Post by geordiepete »

IdefixUK wrote: Mon Feb 24, 2020 11:28 pm
vegansavage wrote: Mon Feb 24, 2020 8:56 pm

Yes, that's the same lawyer. I'm not concerned about a gate across the road at the moment. I'm posting regarding the boundary and my right to erect a fence on it. His comment about a gate across the road was in response to our question about what rights we had given the council have it on the list of streets but in response to our Freedom of Information request no evidence of an adoption. It was another solicitor at a different firm who done a 7 page report in which he stated he believed the road would not have been adopted, especially the spur. He told us to submit the Freedom of Information request. We never went back because he was expensive and if what he said was true then why spend more money. Of course in both cases if it comes to it we'll hire a solicitor.

So you have already used two solicitors

What does a specialist, but not in law mean?

exactly what it says

You seem to want to cast shade on the solicitor I sought advice from.

Not as such, but I do want you understand that a solicitor dealing with conveyancing on a daily basis may still lack the skills required to deal with more complex matters in Land Law


You haven't given any attention to my question regarding what would the surveyors have done differently if I was suppose to have exclusive access to this road?

Even if the surveyors had applied for a determined boundary when the whole was being split up ready for sale the ad medium filum would possibly still apply if the property abutted a road way. It was really for the solicitors to exclude (in the conveyance of your neighbours property) the application of any relevant parts of section 62 of the Law of Property Act 1925 and Wheedon and Burrows, much as the MOD did when they sold to the developer.

What is also your opinion on this. Half the boundary under discussion was purchased two days prior to my house. However the other half of my neighbours now land stayed within the developer's ownership for another two years. What is the result, given ad medium filum, from that part of the boundary where the road is entirely in my boundary and was purchased first?

Nice question that I would find easier to attempt to answer had I still access to the plans. But here goes from memory. It looked on the plans that the general boundary of your neighbour extended upto the roadway to the side of his property. Where his land abuts the roadway ad medium filum will apply, unless rebutted, the case link I posted earlier illustrates some limits to rebuttal. This doesn't apply where his land is not abutting the road.

A day or so later your property is sold with the boundary (on the plan) of the land extending over the whole of that section of the road. The vendor could not sell to you the part (meaning half the width of the road where the neighbours property abuts) so you get the rest, including the whole width of the roadway adjacent to the small parcel of land which was later bought by your neighbour, provided that it falls within the plan of your property.

You can see from this that at some point along that road you own the whole width of the road, but that doesn't help your situation if implied easements come into play, or if it can be shown that the roadway within your title is accessible by the public, or at the very least any other owners of properties on the estate and their agents.

"AHA..goody goody" I hear you cry, "So I own the whole width of the road in one section of it, so I can stop the neighbour using that bit ". Not so. For the couple of days after the sale of the neighbour's property (and before the sale of your property) the whole of the roadway, less the part they (perhaps inadvertently) sold via the ad medium filum assumption, was still in the ownership of the developer AND was laid out as a road. The case of Emmett V Sissons pretty well states that anyone with land abutting a roadway over which they have rights of passage can join that roadway where they wish along the line of abutment. These sorts of rights attach to land and will pass even with the sale of your property, your property becomes the Servient property, and the property which benefits from the Right is known as the Dominant property.
I recall from the plans that you previously posted that all of the roadways on the estate are divided up into different ownership of the surrounding properties. Do you see the owners out on the streets saying "Hey! you can't drive on this side of the street. It belongs to me"? Of course you don't, and rightly so, as all of the residents, and their guests, and the postman, etc have an implied right to use these roads, doubtless YOU use these same streets, owned by others, to access your own property. To my mind the fact that the spur from these roads happens to be a spur doesn't lessen the rights of others to use it

Re; The question of adoption.
I was wondering if the MOD, when they owned and used the estate, had an arrangement with the council for street cleaning and repairs, and that is why there appears to be no official adoption as would be found on a newly built estate.
Aside from my personal interest in this, I am finding the new information interesting so thank you for answering my never ending questions.

We used two solicitors primarily for different reasons. The first was solely regarding the status of the road, the second, six months later, was the firm we had used buying our property and we wanted their opinion on the boundary and gating the road as the council had come back with no evidence of adoption.

I just have a couple of points. From what I’ve read ad medium filum doesn’t apply because the conveyancing history of the road is known - but that the second presumption would come into play. When the surveyor was putting together the deeds map they would have known that the conveyance of land abutting the kerb would have given my neighbours half the road, so in order to be consistent with the rest of the cul-de-sac they could have put boundary in the middle of the road. With this is mind, why wouldn’t the surveyor and the land Registry not have included half the road in my neighbour’s plans? They didn’t, which is why I’m questioning if their land does abut the road.

Do you know what ‘common ownership’ means in terms of property? I ask because a few days after the developers had purchased the estate each individual property was registered under their own title number. The land still had a common owner, but not in a single parcel, as the parcels had already been divided up. Almost a year later when the properties were sold would the legal presumption regarding the road still apply?

Even if the surveyors had applied for a determined boundary when the whole was being split up ready for sale the ad medium filum would possibly still apply if the property abutted a road way

I haven’t read my neighbours deeds. I’ve been reading the case you shared regarding legal presumptions etc and one part states “It is a well-settled rule of construction that, where there is a conveyance of land, even although it is described by reference to a plan, and by colour, and by quantity, if it is said to be bounded on one side by a public thoroughfare, then half of the road passes unless there is enough in the expressions of the instrument or in the surrounding circumstances to show that this is not the intention of the parties”. What if, like my deeds, there is no mention of being “bounded on one side by a public thoroughfare”?

I’ve read about intent. My property is the only one with a dropped kerb off the road - the developers didn’t put one in for my neighbours. The party-line fence that was eventually built, my other neighbour who lived here in the MoD days has stated that it was clear from the lay out that this road appeared to be for my property’s access only (just his opinion looking on the ground at the time), and the fact that everyone has their own access to the front of their property and which I would be the only one in the cul-de-sac with shared access.

My land registry title plan states that I benefit from and am subject to the rights in the transfer between the MoD and developer. This mentions that Land Property Act 1925, Wheeldon etc will not pass. Yet in 2003 when the developer sold the land you suggest these may in some way be re-activated?
mr sheen
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Re: Crossing a general boundary = trespass?

Post by mr sheen »

you Mention intent......

did the developer fence your land such that the fencing excluded use of the section of road under discussion by all others and provide a driveway into the fenced plot? If not, why not? Where did they fence? Why is there a kerb ie a recognised dividing feature between a road and other land?

If the developer fenced some of the land comprising the plot, but left the road open, and put kerbs along the road then this would imply intention for use of the road not just by this plot but as part of the amenity land for all buyers.
MacadamB53
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Re: Crossing a general boundary = trespass?

Post by MacadamB53 »

vegansavage wrote: Tue Feb 25, 2020 11:06 am
MacadamB53 wrote: Tue Feb 25, 2020 10:55 am
vegansavage wrote: Tue Feb 25, 2020 9:05 am

Ok, well from my neighbour's perspective - the developers intended for there to be a 'party-line fence' before the kerb. A party-line fence planned for erecting on a boundary I would have thought would be a big indicator that the boundary wasn't the kerb.
if it’s based on the planning app, not the wording of a deed, this statement is groundless..,
what about the intent of the developer?
as expressed where?
geordiepete
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Re: Crossing a general boundary = trespass?

Post by geordiepete »

mr sheen wrote: Tue Feb 25, 2020 1:38 pm you Mention intent......

did the developer fence your land such that the fencing excluded use of the section of road under discussion by all others and provide a driveway into the fenced plot? If not, why not? Where did they fence? Why is there a kerb ie a recognised dividing feature between a road and other land?

If they fenced some of the land comprising the plot, but left the road open, then this would imply intention for use of the road not just by this plot but as part of the amenity land for all buyers.
The spurs of road comes down to the front of my property only and on to a dropped kerb. My neighbour has their side garden on the other side of this road, with no dropped kerb. When the developer was working on the properties the council, as a condition, requested information on how the extra garden would be enclosed. The developer stated 'party-line fencing' between the properties. However an area opposite my property, at the entrance to the spur of road and where there is still no fence but a hedge, was still being worked on by the developers. Once this work was completed in 2005 the fence was erected (I believe by the owners rather than the developers) - however it also included the gate, which wasn't part of the 'enclosure' that was requested by the council. The intent at the outset, I believe, was that the road would be enclosed for my property only and if the fence had been erected when permission was given then this may have happened. It may have been helpful if the people I bought the property from hadn't told us it was a shared boundary and that they had planted the hedge that runs all the way along the kerb opposite.
geordiepete
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Re: Crossing a general boundary = trespass?

Post by geordiepete »

MacadamB53 wrote: Tue Feb 25, 2020 1:50 pm
vegansavage wrote: Tue Feb 25, 2020 11:06 am
MacadamB53 wrote: Tue Feb 25, 2020 10:55 am if it’s based on the planning app, not the wording of a deed, this statement is groundless..,
what about the intent of the developer?
as expressed where?
Planning application. I know it's not a legal document etc, but it shows their intention when dividing the properties.
MacadamB53
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Re: Crossing a general boundary = trespass?

Post by MacadamB53 »

vegansavage wrote: Tue Feb 25, 2020 1:53 pm
MacadamB53 wrote: Tue Feb 25, 2020 1:50 pm
vegansavage wrote: Tue Feb 25, 2020 11:06 am

what about the intent of the developer?
as expressed where?
Planning application. I know it's not a legal document etc, but it shows their intention when dividing the properties.
nah, wishful thinking mate.

at best, it shows that the developer intended on erecting some fences - not that these would define the legal boundaries of parcels of land yet to be created...
mr sheen
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Re: Crossing a general boundary = trespass?

Post by mr sheen »

Lots of speculation with reference to irrelevant issues like planning applications and non-existent fences.

Facts supporting intention for road:
plot being transferred for private use was identified by fencing by the developer
The road was not enclosed for private use of this plot.
The road is defined with kerbs.
The road is recorded on Council street documents.

Facts supporting existence of right of way for neighbour:
Gate in fence has been present and used for years without dispute.
Present owner purchased property in full knowledge that gate was present and in use.
Present owner did not dispute usage of gate by neighbour for years (and has still not formally disputed it - it is assumed that people would act in a timely manner and most would have had an application for an injunction on day 1 if they disputed a right of way)

What facts support the assertion that the road is not a road but part of a single plot? A list would be useful.
geordiepete
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Re: Crossing a general boundary = trespass?

Post by geordiepete »

MacadamB53 wrote: Tue Feb 25, 2020 1:56 pm
vegansavage wrote: Tue Feb 25, 2020 1:53 pm
MacadamB53 wrote: Tue Feb 25, 2020 1:50 pm as expressed where?
Planning application. I know it's not a legal document etc, but it shows their intention when dividing the properties.
nah, wishful thinking mate.

at best, it shows that the developer intended on erecting some fences - not that these would define the legal boundaries of parcels of land yet to be created...
Fences that were intended to be party-line, as in on the boundary. The land had first been registered the year before, so each plot had been allocated a title number. Would this not show that the boundaries had been set, or could they still be changed?
geordiepete
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Re: Crossing a general boundary = trespass?

Post by geordiepete »

mr sheen wrote: Tue Feb 25, 2020 2:15 pm Lots of speculation with reference to irrelevant issues like planning applications and non-existent fences.

Facts supporting intention for road:
plot being transferred for private use was identified by fencing by the developer
The road was not enclosed for private use of this plot.
The road is defined with kerbs.
The road is recorded on Council street documents.

Facts supporting existence of right of way for neighbour:
Gate in fence has been present and used for years without dispute.
Present owner purchased property in full knowledge that gate was present and in use.
Present owner did not dispute usage of gate by neighbour for years (and has still not formally disputed it - it is assumed that people would act in a timely manner and most would have had an application for an injunction on day 1 if they disputed a right of way)

What facts support the assertion that the road is not a road but part of a single plot? A list would be useful.
What is that I see outside my window, it's a non-existent fence! There is a fence there, I can see it, why is that not the fence that was planned to be on the boundary by the developers?

Right of way is irrelevant if my neighbour owns to the kerb. If I own the piece between the kerb and the gate then it has been in use less than 20 years, what right of way could they have obtained? I've erected a fence in front of it, is this not a formal dispute?

You asked earlier where did the developers did fence. A fence did exist about 5 metres away from the road - their back garden was completely enclosed until 2005. They had land outside their enclosed garden up to the road area.
Last edited by geordiepete on Tue Feb 25, 2020 2:42 pm, edited 1 time in total.
mr sheen
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Re: Crossing a general boundary = trespass?

Post by mr sheen »

These are your assertions, what evidence do you have?

What evidence do you have that you own the section you refer to?

If you have now succeeded in erecting the fence, then you have moved the burden of proof to the neighbour to prove he has a right of way, unless he removes it.
Yes there is a dispute now but no one has previously disputed the neighbour’s use of the gate to access the road.

Have you checked your deeds for details of the roads? In the deeds roads are often identified along with rights and intentions for the roads..
Last edited by mr sheen on Tue Feb 25, 2020 2:52 pm, edited 1 time in total.
alyson
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Re: Crossing a general boundary = trespass?

Post by alyson »

Forgive me if I'm wrong but I don't think the question has been asked:

Why does it matter?
geordiepete
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Re: Crossing a general boundary = trespass?

Post by geordiepete »

mr sheen wrote: Tue Feb 25, 2020 2:40 pm These are your assertions, what evidence do you have?
What evidence do you have that you own the section you refer to?
I've explained that the boundary goes past the one physical feature - which runs directly along the kerb. I could go on, I've mentioned plenty and it's getting boring. You were the one who told me to listen to my solicitor, the day I did and you had a problem with it.
geordiepete
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Re: Crossing a general boundary = trespass?

Post by geordiepete »

alyson wrote: Tue Feb 25, 2020 2:41 pm Forgive me if I'm wrong but I don't think the question has been asked:

Why does it matter?
Because it's infringing.
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Re: Crossing a general boundary = trespass?

Post by alyson »

vegansavage wrote: Tue Feb 25, 2020 2:47 pm
alyson wrote: Tue Feb 25, 2020 2:41 pm Forgive me if I'm wrong but I don't think the question has been asked:

Why does it matter?
Because it's infringing.
Again, why does it matter?
Does it restrict you in any way?
What could you do if there were no gate that you can't do now?
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Re: Crossing a general boundary = trespass?

Post by geordiepete »

mr sheen wrote: Tue Feb 25, 2020 2:40 pm These are your assertions, what evidence do you have?

What evidence do you have that you own the section you refer to?

If you have now succeeded in erecting the fence, then you have moved the burden of proof to the neighbour to prove he has a right of way, unless he removes it.
Yes there is a dispute now but no one has previously disputed the neighbour’s use of the gate to access the road.

Have you checked your deeds for details of the roads? In the deeds roads are often identified along with rights and intentions for the roads..
No mention of the road in the deeds, only the map showing the boundary on the other side of the road. Neighbour isn't claiming a right of way, he's claiming he owns to the kerb. I know the previous owners of my property were angry about the gate, I don't believe they said anything to my neighbour. We have a FOI with the council/ICO to see if they complained to the council.
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