I have not posted our situation on here previously as you never know how much to give away. However, the situation we faced was that we bought a property that was part of an old farm, that was split up just over 40 years ago. The whole farmhouse, farm cottage and assorted barns and outbuildings were at the time in one ownership. The main farmhouse was sold off and the farmer reserved a ROW for himself and his successors in title, over the main track to the farm, to one of the particular barns - "a ROW at all times and for all purposes to the workshop". That was the particular use the barn was put to at the time of the grant.
We later purchased the farm cottage (with it's own access) and with that cottage came additional land and several outbuildings, including the barn and the associated ROW over the farm track to the original farmhouse. We decided that we wanted to convert the barn into a dwelling (as a pension type investment) and explained our plans to the people who had recently bought the original farmhouse (the grantors through succession in title). They immediately said that if we converted the barn into a dwelling, we would automatically lose the ROW. We got paid advice from a solicitor and went on to dispute this opinion the grantors had.
The long and the short of it was that the grantors would not accept the situation and disputed the fact that:
1. The ROW could not be used to access a building that was being used for anything other than the original use (because of the description of the building in the original deed). Our solicitor said that the words "for all purposes" meant exactly that.
2. The grantors then said that we could not "improve" the track because the original use was for farm vehicles etc therefore did not need to be "made up" into a proper modern-day drive. They kept insisting that we COULD NOT do any more than merely repair it to the original form if it became too muddy to use.
3. Because we wanted to use another one of the smaller outbuildings (open-fronted cart-shed) situated at the other side of the original farmyard as garaging for the newly converted dwelling, we were extending the dominant tenement and that was not allowed. We also had plans to add a conservatory to the barn conversion which they also contended was extending the dominant tenement. These points were quite correct because when the deed was drawn up, the only area that was coloured in the plan was in fact the barn (which we believe was to identify it from the others). Probably the farmer at the time did not realise how particular things need to be recorded in these modern times, with more and more problems occuring through things not being done thoroughly enough. However, our solicitor said that these areas (including the garden land immediately surrounding the barn) would be considered as ancillary use.
4. The original deed showed a much larger extent of a ROW than we had been able to use, because almost half the width had subsequently been blocked off by planting a line of trees across it. We contended that we should be entitled to the whole area as shown on the plan annexed to the deed. The grantors said that we had enough room to get up and down, therefore we didn't need the extra. But the available width left to us to use was only wide enough for a very small car to access it and there was certainly no room to pass another vehicle coming in the opposite direction.
1. The wording in the original deed was descriptive, and NOT restrictive. The crucial words “at all times and for all purposes” meant exactly that. So we can go ahead with out plans to convert.
2. If you are the grantee of an expressed ROW at all times and for all purposes, you not only have the right to repair, but also to improve the way for any purpose you wish to use the dominant tenement for. (This is covered by Mills v Silver and Newcomen v Coulson – which I mention only because there seems to be this wide view that you can only repair other people’s land without their permission.) The Judge said that we could improve the ROW to modern-day standards, in any way we wished and to any type of finish (tarmac, block paving, gravel, crushed lime-stone etc) providing it did not interfere with the grantors use of the way. For example, we could not build up a higher “roadway” than that of the remaining land either side as this would prevent the servient owners from driving off the side of the way onto adjoining land in their ownership. Common sense tells us however, that we would speak to the servient owners and see which type of finish they would prefer, and providing that it is not outrageously expensive (ie marble sets etc) we will be happy to take their views into consideration. Obviously, as the dominant tenement, we truly are considered the dominant party!
3. Ancillary use: this was the difficult one. Plenty of case law for and against out there. However, to cut a v.v.long story short, we had to change our pleadings to exclude the open-fronted cart shed for garaging, as it was quite a distance away from the barn and could not be considered as merely ancillary. The Judge did however say he still felt that there was an “ancillary doctrine” and that the use of the extension and immediate garden/parking land came within that ancillary use.
4. Extent of the ROW: again to cut the story, suffice to say that the Judge said that we were entitled to use the way to the full extent as coloured in on the original deed and that the line of trees needed to come down as they were a substantial interference.
Then we come to costs: Ouch. As we had succeeded on all 4 points, ALL costs were to go to the other side. Even bigger ouch!! No schedule of costs available yet, but estimated at £14,000. The other side expressed their displeasure to the Judge, saying that they had lost so much (extra land to be included in extent of ROW, their privacy was reduced, therefore that impacted on the value of their house, the grantees were allowed to do what they liked to the access in terms of improvements etc etc) and now they were being landed with ALL the costs! The Judge replied that if they had been willing to compromise (offers had been made several times in the past) he would have had more sympathy. They had not been prepared to withdraw or compromise, and that they had taken their line and that we had succeeded on all 4 points. An earlier compromise could have been suggested by them selves but they fought to the bitter end. The costs will follow the event!
So there we have it. By the way, the other side were unrepresented because they said they could not afford it. They said that they had had legal advice and that their arguments were based on the advice received. False economy I say. Why they did not bite the bullet and even just have a solicitor to act for them on the day, I do not know. If the advice they had been given was so positive in their favour then they should have been confident of winning, therefore all costs would have gone to us. We can only assume that the advice they had been given was not great, but they thought they knew better. I guess we will never know. I would add that if you are doing your own research, it’s ok to read case law but you must either then get professional advice as to it’s relevance or read it in context with your own special circumstances. The Judge said that each case will always turn on it’s own merits. So be careful.
Anyway, we now know what our legal entitlements are. I do however, feel really terrible that they have now got to find all that money, but as the Judge said, that is the name of the game.
Hope this gives you all a bit of heart out there. If you are right, and you know you are right, don’t give up. You will get there in the end. Good luck all. I’m now going off for a nice glass of wine.
(Not so) Puzzled (one smiley face for each point we were successful on)
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