Success story to cheer you all up

Puzzled
Posts: 260
Joined: Mon Sep 26, 2005 5:55 pm

Success story to cheer you all up

Post by Puzzled » Sat Nov 05, 2005 3:21 pm

At long last we have been to Court and been successful in obtaining a judgement :D :D :D :D (one smiley face for each point we were successful on).

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 conervatory 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.

The judgement:

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.

Regards

(Not so) Puzzled

Puzzled
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Joined: Mon Sep 26, 2005 5:55 pm

Post by Puzzled » Sat Nov 05, 2005 3:36 pm

Back again, just to add that we spent well over the last 3 years trying to amicably come to an agreement with the other party, offered arbitration/mediation, and other such offers in settlement but they always rejected such attempts and once said that they just did not want us to use the ROW at all, but if we gave them £75,000 they would go away and have nothing more to say about it!!! The stress that this whole episode has caused us as a family, (and I dear say the other side also) has been immense. But we have always tried to be courteous, never "gossip" to all and sundry about it, and not tried to get the locals to take sides at all. We are hoping that this will be the end of it, but of course, they can always appeal. We are just holding our breath for the next few weeks, as the Judge has given them 21 days in which to do so if they wish. When they were leaving however, they did mutter that they were going to do so. We just hope that they will get proper advice and decide that they have lost enough!

Fingers, toes and everything else crossed.

ANGRY
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Joined: Sun Apr 24, 2005 12:21 pm
Location: West Midlands

Post by ANGRY » Sat Nov 05, 2005 3:53 pm

:D Puzzled congratulations…

I am very happy for you …I would think it would be a long time before that smile on your face rests…probably only from jaw ache… :lol: :lol:

Well done …and yes, I would think this would inspire many on the forum …including myself…may just have a glass of wine myself while thinking of you… :D

Have all crossed xxxxxxxxxxxx and I know only to well how it feels …with having to wait again… to see if anything transpires xxxxxxxx :roll:

All the very best

Regards ANGRY :wink:

syckend
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Post by syckend » Sun Nov 06, 2005 3:57 pm

On the facts you had a sound case. Your opponents however would not listen to reason. You have a well-deserved win. Congratulations. Your feedback will help others on the forum and give them the strength to keep fighting for what they believe to be right.
I advise as an experienced layman whose dispute via Courts lasted 5+yrs. Try to avoid this route©

rasper
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Joined: Wed Oct 26, 2005 4:19 pm
Location: Newcastle

Post by rasper » Sun Nov 06, 2005 5:14 pm

That's very good news, Puzzled. Are you able to give the name of your case or details of the court where it was heard, so others like us can use your judgement to help us? Well done again for sticking up for what's right.

nigelrb
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Location: Worcs.

Post by nigelrb » Sun Nov 06, 2005 5:50 pm

Hi Rasp,
The judgement cannot be cited as precedent because it is a decision of a subordinate Court.

Cheers, Nigel
Life is never what it seems; there is always two sides to every story.

rasper
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Joined: Wed Oct 26, 2005 4:19 pm
Location: Newcastle

Post by rasper » Sun Nov 06, 2005 6:48 pm

Thanks Nige. I'm new to this but do you mean that it dosen't count as a precedent case if case is heard in a county court? Or have I got wrong end of stick? Thanks.

nigelrb
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Post by nigelrb » Sun Nov 06, 2005 7:13 pm

Exactly. Has to be a decision of High Court or appellant Court (Court of Appeal etc.)
A decision of a subordinate court does not carry the same weight of the higher courts and is subject to appeal where many factors of the matter will be tested. Equally, decisions of the higher courts are also subject to appeal, but because of the 'stature' of the court, its decision can be relied upon to guide the lower courts to a decision based upon 'precedent.'

This really is the 'nutshell' version.

Cheers, Nigel
Life is never what it seems; there is always two sides to every story.

Puzzled
Posts: 260
Joined: Mon Sep 26, 2005 5:55 pm

Post by Puzzled » Sun Nov 06, 2005 7:18 pm

Rasper,

if there are any points in our case that are of particular interest or relevance to you, then I can let you know the case law our Counsel referred to on an individual point basis.

Beech
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Post by Beech » Sun Nov 06, 2005 10:37 pm

Hi Puzzled,

This is excellent news for you.

It's a pity that the whole thing has dragged on so long and had to end up in court just because the other party was unwilling to try work with you to reach a negotiated settlement. It looks as if, because they dug their heels, became entrenched in 'their position', they suffered the ultimate financial penalty as well.

Do you think they will appeal the decision?

Beech :)
[size=84][url=http://ask4help.org.uk/]http://ask4help.org.uk/[/url][/size]

Puzzled
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Joined: Mon Sep 26, 2005 5:55 pm

Post by Puzzled » Mon Nov 07, 2005 11:34 am

Hi Beech,

We don't know if they will try to appeal. If their past attitude is anything to go by they probably will. They have never wanted to accept the situation, and always said "It's not fair" and "You have another access, why can't you use that"! If you buy a property with easements attached, you have to do so on the basis that you accept the associated burdens. Okay, some people may try to take more than they are entitled to (we feel we have not - and so does the Judge), but I think this is their attitude. They feel we have "ripped them off" so who knows what they will do next. Watch this space.

Conveyancer
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Post by Conveyancer » Mon Nov 07, 2005 9:29 pm

Congratulations on your victory!

I think the outcome just goes to show that each case of this kind turns on its facts and perhaps, although in theory it should not it should not, on the judge. Another situation where there is the same wording in the deeds (or perhaps a different judge!) may lead to a different result. I think on the whole this leads to justice, but sometimes makes it difficult for lawyers to advise![/i]

maloom
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Joined: Fri Feb 25, 2005 11:52 am

Post by maloom » Tue Nov 08, 2005 8:23 am

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
This aspect of the ruling intrigues me, as it appears to fly-in-the-face of what I had previously understood of such situations, as acknowledged here - i.e. the prinicple being that repairs, rather than improvement, were the limit. It's of interest to me as I don't want my NFH, who enjoys a right of way over a roadway which I own, thinking that they can cover the existing surface in tarmac.

Puzzled
Posts: 260
Joined: Mon Sep 26, 2005 5:55 pm

Post by Puzzled » Tue Nov 08, 2005 8:49 am

Conveyancer wrote:Congratulations on your victory!

I think the outcome just goes to show that each case of this kind turns on its facts and perhaps, although in theory it should not it should not, on the judge. Another situation where there is the same wording in the deeds (or perhaps a different judge!) may lead to a different result. I think on the whole this leads to justice, but sometimes makes it difficult for lawyers to advise![/i]
Thank you Conveyancer for your congratulations. I would just like to respond to your comments though. I do agree that each case turns on it's facts (especially if there is no clear case-law as in the "doctrine of ancillary use" where some cases have gone one way, and others have gone the opposite, thereby making it difficult for Judges to reconcile the different cases). However, your comment about "another situation where there is the same wording in the deeds may lead to a different result" is what I would like to comment on. I would politely dispute this, as we had 2 clear authorities to support our argument, whereby the other side had no case law at all to refer to on this point whatsoever. Therefore I do not see how this could have lead to a different result on the wording of the deeds.

In our Counsel's opinion, the only point that our case could "substantially" turn on was the ancillary use doctrine. There are several cases out there for and against and it is left to the Judge in each particular case to "draw the line" as to what is substantial or insubstantial use, so in those circumstances, I do agree that it depends sometimes "on the day" so to speak.

Sorry for going on, but I felt a bit deflated when I read your post as I got the feeling that you were suggesting that we had been "lucky" to get the result we had. Perhaps the last few years' events have made me over-sensitive and that was not your view at all, but felt that I had to come back to you on this point.

Anyway, on that note I will shut up.

Puzzled
Posts: 260
Joined: Mon Sep 26, 2005 5:55 pm

Post by Puzzled » Tue Nov 08, 2005 9:15 am

maloom wrote: This aspect of the ruling intrigues me, as it appears to fly-in-the-face of what I had previously understood of such situations, as acknowledged here - i.e. the prinicple being that repairs, rather than improvement, were the limit. It's of interest to me as I don't want my NFH, who enjoys a right of way over a roadway which I own, thinking that they can cover the existing surface in tarmac.
Hi Maloom,

If it helps, I will quote from Mills v Silver (1991) ch 271 where Dillon LJ said:

"In the second place if the first and second defendants or their predecessors had been expressly granted a right of way for all purposes with or without vehicles over the disputed track, that would have entitled them not merely to repair the disputed track but to improve it to makie it suitable for the accommodation of the dominant tenement even if the dominant tenement was to be used for some purpose not in contemplation at the time of the grant: see Newcomen v Coulson (1878) 7 ch. D. 764. This is founded on the presumed intention of the grant. In the simplest case, if a general right of way is granted with or without vehicles, which is to be the principle access to a house, it is permissible for the grantee to improve it by making it up as a carriageway: see for instance Gerrard v Cooke (1806) 2 Bos. & Pul. N.R. 109"

This case was regarding a prescriptive easement but went on to compare it with an expressly granted right of way.

Also there is in Halsburys Laws the following:

"162. Construction of way.

In general the grantor of a right of way is under no liability to construct the way. The grantee of a right of way has a right to enter upon the grantor's land over which the way exends for the purpose of making the grant effective (Newcomen v Coulson). Thus if a right of way for carriages is granted over a field to the grantee's house, the grantee may enter the field and make over it a formed roadway suitable for supporting the ordinary traffic of a carriageway (Newcomen v Coulson) but the grantee may only construct such a way as is suitable to the right granted him and the necessary works must be executed in a reasonable manner and with ordinary skill and prudence. "

If your neighbours right of way is already of a standard that can be negotiated at all time and is in a suitable state of repair, then I would say that there is already a ""formed roadway suitable for supporting the ordinary traffic of a carriageway". In our case, the way was not. The track had fallen into disrepair and was unusable in winter or periods of prolonged rainfall so I guess what the Judge was saying was that we had the right to make over it a formed roadway suitable and fit for purpose.

We have no intention of "slapping tarmac" over the way, but only wish to bring it up to an acceptable standard for use. We will be "talking" with our neighbours to see what treatment they would prefer. You have to remember that our neighbours were trying to stop us using the ROW altogether, and if we had not been able to improve the surface to a suitable standard this would have been "derogation from grant".

Hope this helps you understand it a bit better.

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