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Prescriptive Easements

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Prescriptive Easements

Postby aitch » Sat Sep 23, 2017 6:32 pm

Hello

This new thread is a side issue from my Adverse Possession thread a while back. The Adverse Possession topic started to stray off topic so I have continued it here.

I have been using an access lane from the main highway to and from my garage at the rear of my property for 26 years. I have also parked my vehicle outside my garage on this access lane for the same length of time. At no time have I obstructed any other users as I am at the end of the lane. The access lane is not owned by me.

I have 2 Statutory Declarations from the former owner of the property regarding their use of the same access lane which covers a period of 8 years prior to 1991 so combined with their usage & my 26 years of usage I have a total of 34 years continuous usage. At the time of purchasing my property I had only the 8 years prior usage by the former owners. So when the house was purchased the conveyance at the time did not include any right of access registered at the land registry because not enough time had run. Now over 20 years have run & I want to register my prescriptive right of access.

During the period of 26 years I have never been given permission to use the lane or park my vehicle. I have been open & peaceful about my use, however, the owner of the land did object about me using the lane for access & parking but never followed through with any meaningful legal action.

The land owner tried blocking my access & took me to court in an attempt to obtain an injunction to stop me using the lane but the judge (district) said in court that I do have a right of access by prescription. The judge told the plaintiff that if he wished to pursue the matter to return in a Month with legal representation & he would hear the case & then adjourned. The plaintiff discontinued the claim & as a result I did not receive a ruling and neither did the plaintiff. This was 11 years ago.

Now the land has been sold to a new owner a friend of the first owner who is denying me access & claiming I do not have a right of access. He is aware of the above court hearing because he was in court at the time but denies the judge mentioning anything about my prescriptive access.

I have tried obtaining copies of the hearing. I have the case number but have been told by the court that despite the fact that they can access the general details of the hearing on their database from the case number & date, it only shows the names of the people involved & the judges name but no further details other than the fact that the claim was discontinued.

My questions are these:

1. In the circumstances as described above would the land registry registration be a formality bearing in mind the land owner is bound to object. Does he have any legitimate grounds to object that could defeat my claim for the prescriptive easement being registered?

2. Should I attempt to register the car parking space prescriptive easement at the same time as the right of access or keep the matter separate & pursue it later.

3. Could I realistically register the right of access easement myself at the land registry or would I need legal advice.

4. Would it be likely that the previous court hearing details, such as the judges comments or notes he made at the time, be available elsewhere? I have tried all the usual places. The court itself. The national archive. The county records office.

I would appreciate any feedback about this.
aitch
 
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Re: Prescriptive Easements

Postby dls » Sun Sep 24, 2017 5:29 am

1 It will never be a formality. You may well succeed, but he may have adiffering history
2 Parking easements can be a little more difficult. An easement has in nature not to eclude the owner. It is a claim to jint not exclusive use.
3 Given the history, legal assistance is very highly recommended.
4 I doubt they are recorded. I doubt that you understand the (lack of) significance of any such comments. Reading eween the lines, it was not a final judgment, and if not, it was indicative only.

Best of luck
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Re: Prescriptive Easements

Postby aitch » Sun Sep 24, 2017 8:22 am

Thank you DLS

A quick final question if I may. I cannot imagine this being a speedy process because he is likely to object. During the interim period I am being harassed by the owner of the land making it difficult for me to use the access lane to access my garage or park. The police have been called several times but only to keep the peace. In the end the police have asked me politely to move my car otherwise the owner may tow my vehicle off & possibly damage it. If I use the lane & park in my own garage (on my land) the land owner obstructs my access out again & my car is effectively locked in.

Is there a temporary legal remedy that would allow me to continue using the access until a court or land registry tribunal have ruled one way or the other. Or is it a case that I will have to keep off the land and not use my garage until such a time as a judgement is made which could be Months?
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Re: Prescriptive Easements

Postby dls » Sun Sep 24, 2017 12:37 pm

If he obstructs an access and you can prove that you have a right of way then you may try toobtain an interim injunction as part of an action for the breach.

I cannot emphasise enough the financial dangers of such actions. Be very clear just how much the access is worth for your house. Ask an estate agent. Pay for his opinion. Say it is worth £1000 to the house. Is it worth risking say £60k for this? That 60k can easily be an exaggeration and it may easily be rather more. This is a tiger's tail. Take hold at your peril.
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Re: Prescriptive Easements

Postby aitch » Sun Sep 24, 2017 3:03 pm

Thank you for your reply dls

Excuse me for being a bit dense but I am not certain if you mean 60k for legal representation to get the prescriptive easement registered at the land registry or do you mean if I applied for an interim injunction & he defended it & I lost & had to pay his & my own legal fees. 60k + seems an awful lot of money to get an easement registered. I couldn't risk that amount if it's the case. I would have to attempt to register it myself at the land registry & risk losing.
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Re: Prescriptive Easements

Postby dls » Sun Sep 24, 2017 4:02 pm

I was talking about what happens if it gets near court. I sy again, though, that this is taking a tiger by the tail. Once you take hold, you cannot let go whatever happens.

A fairly sensible discussion is at

http://www.childandchild.co.uk/cms/docu ... sputes.pdf

Yur is not exactly a boundary dispute, but in practice the position is similar.
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Re: Prescriptive Easements

Postby aitch » Sun Sep 24, 2017 5:13 pm

Many thanks for your comments dls. I will make the Child & Child discussion my Sunday evening reading.

regards

Aitch
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Re: Prescriptive Easements

Postby aitch » Sat Oct 07, 2017 10:45 am

Good morning

Does anyone know if this law pertaining to Irish conveyancing will also be changing in the UK?

"changes in the law which take effect after the 30th November, 2021. From the 1st December, 2021 onwards and any in relation to claims regarding Rights of Way made after that date the provisions of the Land and Conveyancing Law Reform Act 2009 will apply. As above the Dominant Owner must prove that the Right of Way is being used without recourse to force or secrecy. The Dominant Owner must also show that the serviant Owner has not consented (orally or by written agreement) to his use of the Right of Way. However the Dominant Owner only needs to show twelve years continuous and uninterrupted use of the Right of Way. A major difference however is that for claims made after the 1st December, 2021 a Dominant Owner will have to apply to Court for an Order recognizing the validity of his Right of Way. Thereafter his legal entitlement to the Right of Way will only be established by registering the Court Order in the Property Registration Authority".


Extract taken from this article:

http://hcalaw.ie/rights-of-way-over-lan ... -long-use/

As discussed earlier in this thread I have the right of access by prescription 26 years (statutory declaration now sworn). I also have statutory declarations from the previous owner showing 9 years & a statutory declaration sworn by a neighbour who lived here 76 years. At the time of her swearing the statutory declaration in 1991 she had lived here 71 years. So I believe I am within my right to assume I do have a legal entitlement to this easement.

I also know without doubt the the burdened landowner will contest this and therefore a straight forward registration of the easement at the Land Regisrty will not be possible. My question here is should I pre-empt this by going to court with the purpose of securing a Court Order and then if successful submit this to the Land Reg? If so what type of Court Order should I apply for from the County Court? Or should I just follow the Land Reg process through from the start & wait for the objection from the burdened landowner?

I know the best advice is to seek legal help but I cannot afford this at the present time and it is imperative that I get this matter resolved asap so I need to apply a DIY solution if possible.

Thank you for any comments
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Re: Prescriptive Easements

Postby atticus » Sat Oct 07, 2017 11:35 am

Irish law does not apply inthe UK. You should restrict your searches to websites discussing the law of England and Wales. The language may be the same; the laws are not identical.
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Re: Prescriptive Easements

Postby aitch » Sat Oct 07, 2017 3:07 pm

Thank you Atticus
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