Enforcing a Private Right of Way

[Anonymous]

Our Grade II Listed property has a diveway long enough for four cars and up until last week there was a right of way granted in 1957 to enable access to a long since defunct factory to the North. On our title deeds the right of way went over half of our driveway, but the developer has successfully convinced the Land Registry that the entry on our deeds is wrong and so the right of way has been extended along the full length of our driveway (i.e. from front to back of our property). The developer now says that we cannot park any cars on our driveway as it must be kept clear at all times effectively renderring our driveway useless and down-valuing our 4-bed property by up to 10% through having no off-road parking. And if they build a house directly behind us we could have cars/people coming & going across our land - this is clearly not what was intended in 1957 when right of way was granted to access a factory. How can I contest this and can they really prevent us from parking our cars on our own land?

 

[Anonymous]

As like most things in this strange country of ours the land laws are awful and very difficult to undersatnd. I would get as many documents, photo graghs dating back as far as possible and any other things you may think usefull and contact a RICS chartered surveyor who deals with boundry disputes (The RICS has loads of diffrent departments ranging from Art valuers to Land surveyors) the RICS website is a good place to start. Be warned that this can be an expensive and time consuming buisness and will give you many sleepless nights but if all works out good it could stop the new build and you could retain your ROW.

Goodluck CG



RICS website

 

[Anonymous]

I'm interested in the fact tha developer has convinced the Land Registry that your deeds are wrong. Was the RoW registered, as per your deeds, at the Land Registry? Have you contested this change to your rights?

If your RoW was registered, then have you asked the Land Registry for compensation?? If may be worth a try.

I should point out, though, if your access was only a right to pass and repass, that isn't a right to also park. The factory may be defunct, but presumably the land on which it stood, and also the access, is legally the property of someone else who is free to dispose of it as they see fit, planning and other laws permitting. It's complicated and I agree messy!

 

[Anonymous]

Sorry - having read your post again (i's early and the brain isn't switched on!) I see that the driveway is yours.

If your deeds are very clear about the right of way, then I would certainly argue your case with the Land Registry. Have you discussed this with them?

I suspect that the would be developer has argued that the entire driveway was used for twenty years and so a right to use it was gained by the owner (ie you and your predecessors in title) not preventing this. Do you think that this may be what has happened?

 

[Anonymous]

iain you have a problem. A right of way is just that.
It will be registered on your deeds and should be shown exactly. The right of way cannot be removed except by a deed of variation or court order. This would have involved all parties.
You need to seek a copy of the registered right of way from land registry, they are very helpful and you can use them online. The problem you have is that if it is a right of way and not demised land then you never did have a right to park unless your property is leasehold and it is expressed in the lease. What do you mean when you say managed to persuade the LHR.

 

[Anonymous]

I suspect that the new owners are claiming a prescriptive right over the whole of the way - which they have now claimed with the Land Registry. They may well have a case...

 

[Anonymous]

He didn't say he managed to persuade land registry, the owners of the factory managed to persuade land registry.

 

[Anonymous]

The owners of the defunct factory land (the would-be developers) will also now be the people who have an easement over the private driveway. Originally apparently this was over half the driveway, now it seems a case has been made to extend this over the other half - the 'parking land' part. The easement will go with the factory land and carry on regardless of the fact the factory is now defunct - access has to be given to land, it cannot usually be landlocked. It may be that a clause was put in the original easement to place restrictions, but that is something which would need to be checked. This easement was apparently originally intended to be only over half the driveway. The driveway owners were in that case perfectly entitled to use the other part of the driveway, the part without an easement to the factory land, to park as it is their private drive, from what I understand from the original post, as long as this did not prevent the passing and re-passing over the other half to the factory. Now that it has been registered by the Land Registry as having such an easement over the whole of the drive, then parking would hinder access to the factory land. I have to say that the Land Regsitry do usually take some persuading, and it would be interesting to know on what basis the claim to an easement over the whole driveway was made.

The would - be developer has argued a case with the Land Registry that the easement should now be over the whole of the private driveway, for whatever reason. I suspect that it is a prescriptive right they have claimed, unless they state that the original deed regarding the easement was wrong?

There are a large number of variables in this - all of which need to be checked. Even if taking this further, it's a good idea, and will save money in the long term, to get as much info together now.

For example - is the driveway (and land on which the Listed house stands of course) actually registered with the Land Registry?

 

[Anonymous]

Prescriptive rights can no longer be claimed, as you cannot get a benefit by breaking the law i.e tresspassing.

 

[Anonymous]

There was a discrepancy between what was shown on my title and what was shown on the adjoining title. The adjoining title deed showed the ROW across the full length of the driveway. Obviously when I bought the property I was aware of the partial ROW but I did not check that it was similarly shown on the adjoining land as I would have expected the Land Registry to have its act together. When I was notified by Land Registry that Jarvis had requested a change to the ROW, at the same time Jarvis had offered an exchange of land with me which would have rendered the whole thing irelevant, so I did not object vociferously. Now Jarvis have rescinded that verbal agreement (to my face, eyball to eyeball) and they clearly lulled me into a false sense of security in order to succeed in persuading the Land Registry.

 

[Anonymous]

This is news to me - can you show the case law?? Or the change in the laws on prescriptive rights?

The problem over common land went to the Lords...

 

[Anonymous]

Yes - verbal agreements are not worth the paper they are(n't) written on!

Short of persuading the Land Registry that your deeds were indeed the correct ones, or that the driveway had only been used as per your deeds, I think there may be little you can do.

 

[Anonymous]

If the Land Registry made an error when registering your title, if the other title was already registered, there is a possiblity (and I'm not building up false hopes because this is not clear-cut) that you MAY be able to claim from them some compenstaion.

However, I'd contact the Land Regsitry solicitor who dealt with the case and argue your own case now... particularly is you feel that the land now claimed has not been used in the past for access.

Sadly, without any witness to the verbal agreement, it's your word against his etc.

 

[Anonymous]

looks like you have problems iain. Might I suggest that you look at swarb.co.uk an interesting site with good advice on law with a particular section on land rights good luck gill

 

[Anonymous]

With a name like Iain Begg (and Iain with two I's at that!) there is at least an outside chance that the original poster is in Scotland, where, of course, verbal agreements have a stronger legal standing.

 

[Anonymous]

It would be good to think so, worms, but it's not as useful as a proper written agreement - especially if the would be developer is happy to say no such agreement was ever spoken of - and as the Land Registry has now registered the easement, it makes it all very difficult.

What I shoud have said to Iain is to check the house insuarnce policy to see if there is any legal cover which may help to take this further.

Also - there are possibly spanners in the works to be thrown regarding development which could adversely affect the setting etc of a listed building... planning objections can be made if it's not all too late now.