Neighbour created 'new' drive and I think I can stop them...

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    #31
    Hi All,

    Had a fun day in the library reading up on this.

    Pilman I can see some of my responses were a little dim - empty vessels do make the most noise! Apologies to you for my ignorance.

    I think I have a better grasp on some of what you have said. Chiefly in the fact that the Harris v Flower case is essentially suggesting that by purchasing (or in my case) acquiring land beyond the right of way I am essentially creating a bridge of land. So the easement for access beyond the area originally intended is a big no no!

    I can see how that might make my own right of way suspect - I'm guessing that this would be vehicular and pedestrian access. I would therefore land-lock my property by attempting to claim that unregistered land. This is because I/my tenant would only be able to enter through the front door. The garage in the rear garden and the side gate to the back door all require access from the current right of way. I lose this, I cannot access side gate or rear of the garden to the garage!

    You also said:

    In fact all the neighbour can lawfully do is to park a car on the drive, in order to walk back over the drive and over the unregistered land to then reach the public highway to walk to another entry point onto his own property.


    if he parked a car on the drive and then directly accessed his own property that would be a breach of the rule in Harris v Flower, although only the legal owner of the unregistered land could begin legal proceedings to stop that happening.
    Well if I retain my right of way by not acquiring the unregistered land, surely the neighbour parking on this drive down to my garage would interfere with my vehicular access to that garage?

    Tomorrow I am reading up on dominant and servient ownership of land again. As I look at the deeds and consider the grant that would have been made to the property I cannot find fault with is in the same way you can pilman. I can tell you have a great deal of knowledge and experience in this area so I need to read over this again. I think you are interpreting my (inadequate) explanation as if this drive has always been shared or used as a drive by a different owner in the past.

    This has only ever been a drive down to the garage at the bottom of the garden so the 'drive' itself and its servient ownership has never really been in question. What has confused matters now is the fact that the new neighbour is now using what is their land to access the back of their property. We've gone from exclusive ownership and use of that drive to them now taking their car down there too. This has never happened in the history of the cottage regardless of who owned the drive at the time.

    I need to get my head around why this grant was not permissible under English law. I think its because you are suggesting that it would be his drive access that would be the issue. However as I mentioned in my last post and earlier in this one. I think the land has been bounced back and forward from the cottage to the farm behind. I'm guessing that when the farmer bought up parcels of land, they would have been the Grantor providing the easement over what the cottage has used for a drive after all of these years. They would never have physically needed to use it.

    Its only because this neighbour is being a bit sassy by now purchasing this land and using it as a 'shared' drive down to a new hole in his hedge line where he can now get in and park his car that the complications have begun!

    Cheers,

    Robby

    Comment


      #32
      The word "complications" in that last sentence doesn't seem appropriate.

      You have a right of way over this person's land that is used as a drive.

      The new owner also owns the land alongside the drive and is now using part of his land to access another part of his land.

      You can continue to use the drive because an earlier owner granted a right of way over this drive.

      If we ignore the question of whether the unregistered land has a right of way over it, it seems quite reasonable to me that the new owner wants to gain full use of his acquisition.

      As long as your right of way is not substantially obstructed then you have no right to try and prevent the new owner from using his land as he wishes to use it.

      I only mentioned the rule in Harris v Flowers to make you realise that you would not have a right of way to our garage if it was only the Drive that became the dominant land.

      Then neither you nor the neighbour could access land you own that sits adjacent to the drive.

      I know that if I had just bought this drive in order to access my own land and the "neighbour" (that's you) tried to prevent me using it I would be quite rightly annoyed and would immediately do something about it.

      Your post seems to be saying that because you are now used to exclusive use of the drive for your tenant (not even for yourself) you do not want the new owner to use it for his own benefit.

      I think that's just wrong and you need to start living in the real world, where ownership of land trumps a right of way over that land.

      Comment


        #33
        Beg to differ! "Complications" is exactly right! I've had a week driving back and forth to my tenant with police now involved because of the actions of this neighbour.

        New neighbour is using his land to access another part of his land. This is now involving up to three parked cars/vans left on this land blocking the right of way. Turned nasty with tenant being threatened and felt need to call police.

        First comment from police officer on the scene was "why are you driving over land that is not yours to access your land when you have a number of other access points to your property?"
        Response: "because I can"
        Police officer:"you are being antagonistic"
        Response: "so what!"

        The tenant says that the neighbour cannot even get his cars into his own property without difficulty. At 3.15am on Sunday morning he had to listen to his 4x4 being backed in and out of the gate. He has shown me this on his phone. It was the equivalent of a thirty point turn before he managed to get it parked.

        The police are now saying that this is a civil issue and it does not concern them.

        So pilman this is me "living in the real world" right now. I've gone from zero problems from my grandfather's legacy to this.

        I am not sure why you are ignoring the question of the unregistered land as it is this that makes all of the difference! It is not their land to drive over and they have no right of way over it. Yet they are doing so to cause 'complications' for my tenant which is also a complication for me.

        Would you have bought land for access knowing that the only way you could access that land was by driving over land you didn't own? Or would you purchase it and be "quite rightly annoyed" that you didn't have the rights that you thought you had?

        My post is saying that this is a highly charged and difficult situation that I am trying to deal with in the best possible way to protect my interests. However, although I don't always agree with your assumptions surrounding the context of my situation I do appreciate some of the valid legal points you have shared.

        I have spoken with a solicitor who has suggested that I can go ahead with adverse possession. This will of course impact upon the Harris v Flowers ruling that you suggested earlier in this thread. The likelihood is that either the new neighbour just puts up with it, or tries to damage the gate or takes me to court.

        If he puts up with it - issue solved
        If he damages the gate - he will be charged
        If he takes me to court it is likely that I would lose the right of way over his property (the drive down to the garages). He will no longer be able to access his own property from that side and ends up with a useless piece of land.

        My solicitor is suggesting that I would still be able to access that land on foot to get to the side gate in my garden. He believes that because that access has been used for so long, a court is not going to extinguish that right but would prevent the use of a car going all the way down to the bottom of his drive where the garage is.

        They also suggest that the new neighbour should not be in a position to access this drive even though they now own it. Their use of it over the unregistered land seems to be the key issue. They have advised me to wait while they follow up on this because this is the route that is less likely to create more hostility. He has also warned that the neighbours may well claim that unregistered land for themselves and I'll end up taking them to court to claim a prescriptive right of way regardless!

        This is not the best situation to be in currently.

        Cheers,

        Robby

        Comment


          #34
          Thank you for your posts: Very useful case study for others...
          I am legally unqualified: If you need to rely on advice check it with a suitable authority - eg a solicitor specialising in landlord/tenant law...

          Comment


            #35
            Originally posted by theartfullodger View Post
            Thank you for your posts: Very useful case study for others...
            Did you forget the #sarc?

            Comment


              #36
              In a fairly lengthy posting I made on 24th May, I pointed out that any right of way over the unregistered land exists solely for the benefit of the drive, if there has been a period of over 20 years that vehicles passed over that land in order to get to the drive.

              You say that use of the drive started when your grandfather owned the garage at the need of this drive, even though he never owned the drive, but had a right of way granted over it.

              That would certainly imply that there was now a legal right of way over the unregistered land, because of the length of time that access over it has been made.

              It is known that the current owner of the drive had recently bought this drive from the previous owner, which means that the new owner's drive has the benefit of the right of way over the unregistered land created by your grandfather's and your constant use of that unregistered land for over 20 years.

              You are now saying that a solicitor has advised you to "go ahead with adverse possession"
              You also stated "It is not their land to drive over and they have no right of way over it."

              There is a right of way over it that can be proven due to the use that the owners of your garage have made of the land, so an attempt by you to fence off this unregistered land to prevent access over it to the drive, will be a substantial obstruction of a right of way that allows the current owner of the drive access to it.

              Should you go ahead and accept the solicitor's advice, which is wrong, then the drive's owner will be entitled to remove any fence erected by you, because that will prevent a lawful use of the unregistered land to access the drive.

              There is case law that such self-help to continue using a lawful right of way is an acceptable way of removing a substantial obstruction erected by the lawful owner of the servient land.

              In this case as soon as you attempt to erect a fence on land you do not own I cannot see how the law would not allow the owner of the drive to remove that fence immediately, as it will be a deliberate attempt to substantially obstruct a right of way, although the person erecting the fence will not be the lawful owner of the unregistered land.

              I would advise that you think very carefully about accepting advice which seems not have taken account of the fact that a right of way over the unregistered land is a legal interest over land that is one of the two property rights recognised by Section 1 of the Law of Property Act 1925.

              The fact that it was your grandfather's use and your use that created such a legal right of way is no justification for you to now attempt to prevent use of that right of way that exists for the benefit of the "drive".
              That will be a trespass against the legal interest over land that is now owned by the neighbour who purchased the legal estate in the drive.

              Section 62 of the Law of Property Act 1925 makes that quite clear.
              62 General words implied in conveyances.

              (1)A conveyance of land shall be deemed to include and shall by virtue of this Act operate to convey, with the land, all buildings, erections, fixtures, commons, hedges, ditches, fences, ways, waters, water-courses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to appertain to the land, or any part thereof, or, at the time of conveyance, demised, occupied, or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof.
              That means that the neighbour bought the land over which the drive was constructed and any right of way associated with that drive.

              In my opinion that means that it doesn't matter who owns the unregistered land now or in the future, because a right of way will be a permanent legal burden on that land that will make it very difficult to make any practical use of it, other than as a roadway leading to the original drive.

              The problems you have described with the use being made of the drive by the neighbour may give rise to an actionable claim against the neighbour, because you have a right of way over the drive to access the garage on your property.

              As the police correctly stated this is a civil legal matter for you to pursue through the courts.

              Personally I would advise you not to start erecting fences to prevent access to the drive, but to give consideration to taking legal action against the neighbour if he continues to cause a substantial obstruction to your right of way.

              I do sympathise with the situation you find yourself in, although I think you have misunderstood what you can lawfully do about preventing it.

              Two wrongs don't make a right and what you are contemplating will in my opinion be wrong.

              Comment


                #37
                Cheers the artfullodger - hopefully not a sarcastic response as JKO would make out...

                Pilman your knowledge is much appreciated on this and provides a well-timed pause before I follow any advice from the solicitor. I understand that you morally disagree with what I'm trying to do. I'm not ruling out pursuing them through the courts if this obstruction continues (which has happened again last night) but it is clear that this guy is a nasty piece of work and that doesn't sit well with me. I don't think anyone has stood up to him before.

                I do have to consider the impact for my tenant and my property. My tenant is understandably upset and wants to push back. I don't want to get into a battle just because my tenant wants me to but I also don't want to allow this neighbour to affect the long-term rental of the house. It's a tough position to be in and has come right out of the blue. I am sure I will look back on this is years and chalk it up to experience but right now I have to weigh up all options that are in front of me.

                As I understood it the solicitor was suggesting (rightly or wrongly) that the new neighbour is unlikely to be able to evidence 20 years of uninterrupted usage over the unregistered land. Although I know it the neighbour doesn't. This means they would have to find evidence that this has been the case. If they can't do that, how do they justify any right of way over it?

                This then implies the same situation for my tenant, but by then claiming adverse possession over the unregistered land that would claim ownership of it that would allow access.

                As you rightly point out that also would prevent a right of way over their drive to the garage at the bottom. But there is plenty of land at the front of the house to park a number of cars on and even erect a garage in the future. Garage can then become a workshop or annex to increase future rental income.

                Moving the side gate further up the garden would still allow access on foot.

                It is a case of cutting of nose to spite face - but if it stops the issues with car access and 'bullying' of tenant it is something to consider.

                My brother-in-law has suggested that he should seek adverse possession on my behalf and he and his brothers would install the gate and fence. He would provide enough room to walk around on foot but stop any vehicles getting down there. They said I should consider allowing them to do this as it would prevent the Harris v Flowers issue leaving the right to still access the right of way on the neighbour's drive. Not sure if this is feasible but will talk through with solicitor again - along with all that you have raised pilman.

                Cheers,

                Robby

                Comment


                  #38
                  Latest advice:

                  1. Neighbour unlikely to be able to evidence prescriptive rights and I am not to help them do so
                  2. Suggested that only part of the unregistered land is claimed adversely leaving some unregistered land between the 'possessed' land and the neighbour's drive where the RoW exists - no Harris v Flower issues?!?
                  3. Fence off all unregistered land save a small part and access on foot through the front of garden across uregistered land that is left- no vehicular access for anyone (with no prescriptive rights evidenced)
                  4. The existing gate that was mentioned earlier highlights the old boundary at the front of my property - I am to consider reinstalling that fence immediately as neighbour is crossing over a very small section of my land before travelling across to the unregistered land - danger that someone may attempt to claim prescriptive rights as villagers have walked this route before.

                  Due to talk again with solicitor this weekend and will ask further questions about all the advice I've received.

                  I tried to write a letter to the neighbour to discuss an amicable way forward but received an abusive response. It was worth a try...

                  Cheers,

                  Robby

                  Comment


                    #39
                    Has the land they have recently bought now appeared on the Land Registry website as registered to them?

                    So there is:

                    -land they have recently bought
                    -Land that remains unregistered, with an as-yet unknown owner
                    -a driveway that neither of you own (is this registered)?

                    Any chance of a sketch drawing?

                    Comment


                      #40
                      Hello,

                      Update of where I am so far.

                      Now found that garage was originally workshop that belonged to farm behind. Was converted with a garage door by grandfather but certainly never used as such for more than twenty years consecutively...

                      Therefore the only prescriptive right of way over the unregistered land is to the cottage and not the drive. Neighbour cannot claim prescriptive right of way over unregistered land to their property (and my right of way) and are therefore acting unlawfully in doing so.

                      We have also found a covenant in their deeds that stated they had permission to use the right of way to maintain their trees and hedges along the boundary of their property. Solicitor is investigating if their purchase of that land where a covenant exists to allow access along their boundaries is indeed an example of them purchasing land where an easement already exists. This would be unlawful.

                      I am considering offering to purchase this land from them to draw a line under this mess. Will let you know the outcome.

                      Cheers,

                      Robby

                      Comment

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