Right of Access

wtc
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Re: Right of Access

Post by wtc »

Beehive - sorry, can you go over the timeline again. I would have had the same understanding of ownership history as Collaborate but the latest post now conflicts.

Are there three titles here?

My understanding for each title:
1. Combined no 2 and no 3 plot. 1997 Bought by Company A. Immediately does two TP1s. Remainder of plot still owned by Company A.
2. Plot of no 3 from 1997 TP1. Bought by individuals X&Y. House built 2002. Sell in 2002 to Company C, which is a rename of Company B. Bought recently by yourselves.
3. Plot of no 2 from other 1997 TP1. Bought by Company B.

I appreciate the need to redact so it seems confusing. Please correct the above if I am wrong. I am wondering what, if anything, is left of that first title owned by Company A if much was transferred out in two TP1s.
Beehive
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Re: Right of Access

Post by Beehive »

Hi WTC to be honest its so confusing; I think I've confused myself but I'll try to clarify below, especially as I've now now established there is a Company D! Although I don't think this changes the story significantly; the individuals Mr & Mrs X appear to own upwards of 4 different companies all with slightly varying names along the same theme.

Sorry for any confusion, but the bottom line is that the properties have since 2003 been in the ownership of Company C and Company D. Both of these companies are owned by the same family. Mr & Mrs X are directors along with two other family members. There have been some changes of directors over the years before the current four, (4 which I would guess is because children have reached majority and so have been added and others kicked out) but Mr & Mrs X have always been directors and/or director and secretary and they are also shown in companies house as being the shareholders.


Company A - bought original house/plot- Company called X Project Limited
Company B - Transferee in TP1 of No2 (the retained land) in 1997 Company called XXXXX Limited
Company C - rebrand/rename of Company B - Company now called X Limited
Company D - Bought the house from Mr & Mrs X who where the original transferees in the TP1 in 1997 which dealt with transfer of No3/the plot our house is built on. I say "bought it" rather than simply transferred it as the title confirms the sum of money paid which would have been full market value at the time. Company D is called XXX Limited


Beehive - sorry, can you go over the timeline again. I would have had the same understanding of ownership history as Collaborate but the latest post now conflicts

Are there three titles here? No there are only two; The original No2 was effectively split in half when originally bought in 1997.

My understanding for each title:
1. Combined no 2 and no 3 plot. 1997 Bought by Company A.Correct

Immediately does two TP1s. Correct

Remainder of plot still owned by Company A. No there was nothing retained; One TP1 transferee was Mr & Mrs X and the other TP1 was to Company B


2. Plot of no 3 from 1997 TP1. Bought by individuals X&Y Well they were the transferees in that TP1 as above, so yes I suppose we say that they bought it

House built 2002 No, house built in 1998

Sell in 2002 to Company C, which is a rename of Company B. No, they sell in 2003 to Company D, - Company D being owned by them

Bought recently by yourselves. Yes, we bought from Company D

3. Plot of no 2 from other 1997 TP1. Bought by Company B.

It was transferred to Company B by that transfer of part on 1997. It has remained in the same ownership save for the change of name of that company since the transfer in 1997. This is the bit that I'd got confused about because of some dates (2003) in the Property Register. I thought that they had "sold" it but I think actually all that happened was that the register was updated in 2003 to reflect the new company name (Company C) The register still only refers to the "the price stated to have been paid on 1 July 1997 was £X". So I guess it was a transfer of equity or as I say just the company name change updated.

I appreciate the need to redact so it seems confusing. Please correct the above if I am wrong. I am wondering what, if anything, is left of that first title owned by Company A if much was transferred out in two TP1s.

There is nothing left owned by Company A - as I say the original property was basically divided into two; the original house remained as it was and the plot that was sold is where our house was built - sounds grander than it is - we are effectively and end terrace of three having been built onto the end of what was a pair of semi's.
Last edited by Beehive on Sat May 11, 2024 7:54 am, edited 1 time in total.
Beehive
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Re: Right of Access

Post by Beehive »

stufe35 wrote: Fri May 10, 2024 4:50 pm Additionally i suspect there is a good chance that the solicitors have egg on their faces as their client probably expected them to include an easement when they sold to you. So to some extent they are potentially fighting their own battle to regain confidence of their client.

I don't disagree; more to the point, the reservations should have been included when they did the original TP1 in 1997 knowing that they were going to develop the site. Bit of a c*ck up all round on their part tbh.
Collaborate
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Re: Right of Access

Post by Collaborate »

Can you stop referring to company B and company C? It’s the same company whatever they choose to call it.

This is partly where the confusion has come from.
pilman
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Re: Right of Access

Post by pilman »

It has not been mentioned in any detail what was the legal situation when there were separate tenants occupying each of the properties.

There was a great deal of consideration given by the Law Commission as to whether the current legal system in England and Wales should be changed
regarding acquisition of prescriptive rights over land held under a lease, which appears to be the situation in this thread.

Currently the ability to acquire prescriptive rights are referred to as "the Fee to Fee rule", which means the rights are between the freeholder of what would be the dominant land, which is to have the benefit of the easement, and the freeholder of the servient land, which is to have the burden of the easement.

In a Judgement made in the Court of Final Appeal Hong Kong, Lord Millett reviewed this aspect of the law as it applied in England and Wales, because all land in Hong Kong was held under sub-leases granted by the Government, which owned all land under the Head Lease granted by the Chinese in the 19th Century.
He said: "The [fee simple] rule is both counter-intuitive and contrary to the policy of the law. It is counter-intuitive because it is difficult to see why it should be impossible to presume a lost grant of an easement by or to a lessee for the term of his lease when such a grant may be made expressly … . It is contrary to the policy of the law, for if the disturbance of long established de facto enjoyment of a right is contrary to legal policy, then this is equally the case whether the enjoyment is by or against a freeholder or a leaseholder."
The Law Commission made a decision that this rule should remain in existence, despite the criticism of the Lord Justice and many other academics that this was a matter that needed to be changed.
Accordingly, we have not pursued the suggestion raised in the Consultation Paper and recommend that the new scheme reflect the current position. We have therefore not followed the views expressed by Lord Millett, quoted above at paragraph 3.145; we agree with consultees that the scope of prescription should not be extended.
The question in this thread is whether the person leasing house number 2 would be able to gain a prescriptive easement over the land at number 2 when it was occupied by a tenant.

This requires answers to a number of questions.

1. Did each of the freeholders know about such use?
2. In which case was there acquiescence by the servient land owner, or was it implied permission, because of the close ownership of the two properties.
3. Did all rights cease to exist when each tenancy came to an end?
4. Was the break between tenancies enough to stop the 20 year period required for prescription to be established?

The current claims set out by the owners of house number 2 is that all use was as of right, although the occupation by different tenants at all times during any 20 year period will need to be taken into consideration.
Beehive
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Re: Right of Access

Post by Beehive »

pilman wrote: Mon May 13, 2024 5:01 pm It has not been mentioned in any detail what was the legal situation when there were separate tenants occupying each of the properties.

There was a great deal of consideration given by the Law Commission as to whether the current legal system in England and Wales should be changed
regarding acquisition of prescriptive rights over land held under a lease, which appears to be the situation in this thread.

Currently the ability to acquire prescriptive rights are referred to as "the Fee to Fee rule", which means the rights are between the freeholder of what would be the dominant land, which is to have the benefit of the easement, and the freeholder of the servient land, which is to have the burden of the easement.

In a Judgement made in the Court of Final Appeal Hong Kong, Lord Millett reviewed this aspect of the law as it applied in England and Wales, because all land in Hong Kong was held under sub-leases granted by the Government, which owned all land under the Head Lease granted by the Chinese in the 19th Century.
He said: "The [fee simple] rule is both counter-intuitive and contrary to the policy of the law. It is counter-intuitive because it is difficult to see why it should be impossible to presume a lost grant of an easement by or to a lessee for the term of his lease when such a grant may be made expressly … . It is contrary to the policy of the law, for if the disturbance of long established de facto enjoyment of a right is contrary to legal policy, then this is equally the case whether the enjoyment is by or against a freeholder or a leaseholder."
The Law Commission made a decision that this rule should remain in existence, despite the criticism of the Lord Justice and many other academics that this was a matter that needed to be changed.
Accordingly, we have not pursued the suggestion raised in the Consultation Paper and recommend that the new scheme reflect the current position. We have therefore not followed the views expressed by Lord Millett, quoted above at paragraph 3.145; we agree with consultees that the scope of prescription should not be extended.
The question in this thread is whether the person leasing house number 2 would be able to gain a prescriptive easement over the land at number 2 when it was occupied by a tenant.

This requires answers to a number of questions.

1. Did each of the freeholders know about such use?
2. In which case was there acquiescence by the servient land owner, or was it implied permission, because of the close ownership of the two properties.
3. Did all rights cease to exist when each tenancy came to an end?
4. Was the break between tenancies enough to stop the 20 year period required for prescription to be established?

The current claims set out by the owners of house number 2 is that all use was as of right, although the occupation by different tenants at all times during any 20 year period will need to be taken into consideration.
To be clear, the properties were let on standard Assured Shorthold Tenancy agreements and not long Leases.

I was just thinking about your questions and in relation to number 2, I've remembered that when the house was advertised for rent I'm 2019 it was advertised as having a parking space. It was also advertised for sale as having parking. Surely this amounts to permission meaning any claim as of right can be rebutted on that basis?
Collaborate
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Re: Right of Access

Post by Collaborate »

You’re tying yourself up in knots unnecessarily. It’s for those asserting rights over your land to make their case. It’s not for you to imagine what their case might be.

If or when they make their case you can examine the merit of it then. Without having to contemplate esoteric principles of land law.
Rushton
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Re: Right of Access

Post by Rushton »

Collaborate wrote: Mon May 13, 2024 9:42 pm You’re tying yourself up in knots unnecessarily. It’s for those asserting rights over your land to make their case. It’s not for you to imagine what their case might be.

If or when they make their case you can examine the merit of it then. Without having to contemplate esoteric principles of land law.
So true.
Beehive
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Re: Right of Access

Post by Beehive »

If or when they make their case you can examine the merit of it then.
They have made their claim, as per my original and other posts, including their solicitors email to us as also posted. They claim they have a prescriptive right gained by more than 20 years use as of right. The purpose of coming to the form was to to try and better understand, based on the information I have provided, whether we have grounds to assert that this claim will fail.

I believe they will fail; it turns out that you can use Google street view to see images from past years; having done so, it shows us that there was a fence and hedge erected between the boundary of the two properties in 2009 and 2010, so self evidently our driveway was not being used to gain access to next door in any shape or form. I'm clearly no expert, but I would think that in terms of rebutting their claim as to 20 years use as of right, that ought to do it.
MacadamB53
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Re: Right of Access

Post by MacadamB53 »

Beehive wrote: Wed May 22, 2024 9:43 am
If or when they make their case you can examine the merit of it then.
They have made their claim, as per my original and other posts, including their solicitors email to us as also posted. They claim they have a prescriptive right gained by more than 20 years use as of right. The purpose of coming to the form was to to try and better understand, based on the information I have provided, whether we have grounds to assert that this claim will fail.

I believe they will fail; it turns out that you can use Google street view to see images from past years; having done so, it shows us that there was a fence and hedge erected between the boundary of the two properties in 2009 and 2010, so self evidently our driveway was not being used to gain access to next door in any shape or form. I'm clearly no expert, but I would think that in terms of rebutting their claim as to 20 years use as of right, that ought to do it.
+1
Collaborate
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Re: Right of Access

Post by Collaborate »

Also, unless they've sent you much more than you've let on, they haven't yet made out their client's case.

A proper letter before action will include all their evidence, including statutory declarations from those who can evidence 20 years use as of right. At that stage you can rebut.

Such letters are not cheap. I suspect they know they have a weak case, which is why they haven't gone to the cost of doing a proper LBA.
Beehive
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Re: Right of Access

Post by Beehive »

A proper letter before action will include all their evidence, including statutory declarations from those who can evidence 20 years use as of right. At that stage you can rebut
.

That's good to know thank you. Sounds like they've got a bit of work to do in the first instance then. We've not received anything of that nature, bar the initial email. In fact, Dispute Resolution have handed it back to the conveyancing lawyer, who has written to us suggesting that the best and easiest resolution, in their view - obviously, is for us to enter into a Deed of Easement - not our definition of the "best" outcome, hence we have not stated that we agree. We haven't heard from them in a couple of weeks, but that is because they have also applied for their own dropped kerb. If they don't get the permission for this, I strongly suspect they will ramp it up again in terms of their threats if we don't agree to enter into a Deed of Easement. I'm holding back on the information I have as regards evidence of the boundary until such time as I need to share it; this time would appear to be if and when (as you've helpfully clarified) they issue an actual LBA. On the other hand, I'd be minded to try and shut them down sooner rather than later, otherwise this has the potential to drag on, and I'd much rather be done with it sooner rather than later.
MacadamB53
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Re: Right of Access

Post by MacadamB53 »

Beehive wrote: Wed May 22, 2024 12:17 pm
A proper letter before action will include all their evidence, including statutory declarations from those who can evidence 20 years use as of right. At that stage you can rebut
.

That's good to know thank you. Sounds like they've got a bit of work to do in the first instance then. We've not received anything of that nature, bar the initial email. In fact, Dispute Resolution have handed it back to the conveyancing lawyer, who has written to us suggesting that the best and easiest resolution, in their view - obviously, is for us to enter into a Deed of Easement - not our definition of the "best" outcome, hence we have not stated that we agree. We haven't heard from them in a couple of weeks, but that is because they have also applied for their own dropped kerb. If they don't get the permission for this, I strongly suspect they will ramp it up again in terms of their threats if we don't agree to enter into a Deed of Easement. I'm holding back on the information I have as regards evidence of the boundary until such time as I need to share it; this time would appear to be if and when (as you've helpfully clarified) they issue an actual LBA. On the other hand, I'd be minded to try and shut them down sooner rather than later, otherwise this has the potential to drag on, and I'd much rather be done with it sooner rather than later.
opportunity to make £££££ if you’re open to the idea
Beehive
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Re: Right of Access

Post by Beehive »

opportunity to make £££££ if you’re open to the idea
it is tempting, but it's not really about that; I think it would be a short term gain for a lot of long term pain given how many threads I see on here relating to rights of way and difficult neighbours....
Beehive
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Re: Right of Access

Post by Beehive »

We've had communication from the planning department as to their application for direct vehicular access. I've been to the planning portal to look at their application - they have stated on it that "since 2010 number 2 has had access over the driveway of Number 3"...they've gone on to say they are in "legal dispute" about it - not sure that planning care about that... However, I cannot believe that they have been so stupid as to have stated that the use has only been in place since 2010 - their solicitor must have their head in their hands with these buffoons as clients. They have also been entirely dishonest about the situation in claiming 20 years etc, etc; their solicitors email claiming this along with their own planning application stating otherwise, surely makes them out to look pretty disingenuous (if not outright liars) in anyone's view
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