The Accidental Smallholder Forum
Smallholding => Buildings & planning => Topic started by: vixstix on January 26, 2016, 09:00:59 am
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Hi,
I wonder if anyone could recommend a lawyer with expertise concerning Rights of Way? I own a small part wooded/part pasture field near Wrexham. The forest above the hill from my land has recently come up for sale, with a previously unknown to me claim of a Right of Way for any purpose right across my field. The vendor evidently has details of this right in their deed of ownership. There is no trace on the ground of this right ever being exercised but I am concerned that new owners may wish to.
thank you.
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Hi, I use the website gardenlaw . It might be worth posting your query on there in the first instance. \\\it is free and there are some knowledgeable people who will help you better understand your position before paying for a solicitor.
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Firstly check with the public rights of way officer at your local council to see if does exist on what it called the definitive map. They should be able to give you some advice
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Hi, I use the website gardenlaw . It might be worth posting your query on there in the first instance. \\\it is free and there are some knowledgeable people who will help you better understand your position before paying for a solicitor.
Agree a couple of great guys on there, one did my enforcement appeal for me ran rings around the council
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Firstly check with the public rights of way officer at your local council to see if does exist on what it called the definitive map. They should be able to give you some advice
From what the OP says this is likely to be an easement rather than a public right of way.
You should check what your land register entry says. You should have been given a copy of this when you purchased your house. If it does not appear on the register then they would have to go through quite a few hurdles to claim the right.
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Thanks everybody for your help. The situation is complicated (as always) but I'll try to sum it up. I bought a field over 5 years ago, a field I knew well, it's situated between a road and a forest with a fence boundary. The owner of the forest has now advertised his land for sale with a 20' right of way for any purpose running right across my field. Evidently this is in the deeds of ownership. The land is unregistered so no sign of his claim showed up when I bought my field. In living memory there has been no access to the forest across my land other than a public footpath which is well marked, maintained and used. There is access higher up the hill via a trackway.A continuous fence, bank, scrub and trees form the boundary between my land and the forest. Livestock has been kept on my field for over 30 years, fenced in, i.e. no gate on the boundary. The vendor is marketing his forest for the commercial timber value so clearly the access for the purpose of logging is of benefit to him, and horror to me. We have nurtured a lowland meadow, with rare butterfly orchids and mixed deciduous woodland, I really don't want a road putting through it.
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I'm no expert but I would think if the so-called 'right of way' has not been used for 30-odd years then he's no chance of making it stick.
Surely the onus would be on him to prove that he has this right across your field?
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if this right of way is in his deeds as mentioned, that is his proof. You cannot lose a granted private right of way by lack of use.
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You need to contact the solicitor who did your conveyancing when you purchased the field. This easement should have been flagged up by them at that point (even if the title to the forest is unregistered) if the easement was expressly granted (which you suggest when you say that it is in their deeds). If there is an express grant your only solution may be an action for negligence against your solicitor.
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It could also be an advantage to have the right of access ... such as asking them to pay for a surface to it so that they don't destroy the special place where the orchids grow or create a dangerous trap such as heavy deep ruts. that your stock may to fall into & break their legs etc .
Or
Perhaps seek legal agreement that someone legally using the access will reinstate it if any surface damage of any kind is occasioned due to them using th access as it is your only stock grazing land
Even hairier could it be a site of special scientific interest .. ?
Though it can also have some big down sides as well . Got any newts living in small water courses across the track area .... can you get some ? :innocent:
One thing that has crossed my mind a few seconds ago .. can you still register an interest in someones land be it registered or not ?
I was looking to buy some land that has a registered interest set on it .. turned out I'd have had to have more money than Google to defeat the folk who registered the interest for thy were ;large London based group of solicitors & barristers who had annual paid fishing rights to a small well stocked pond that was slap bang in the middle of the plot .
Another plot I looked at had the interest thing against it as well and that was because some people in the old English Nature set up had been there and recorded everything without the owners knowledge .. they were happy to spend £ zillions stopping any changes to the area .
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If the new owner has more than one way to access his land the courts may make him chose one or the other or hey make tat choice for him that the way it is carried out here in Alabama
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Here in England, if he has a granted ROW a court will not take it off him no matter how many other ways there are to access his land. The deed gives him the right to access it along that route.
Whether he can construct a paved road could be the subject of planning permission and all kinds of environmental studies/ flood risk studies/ mitigation. But planning law is completely separate to the existence of a ROW.
As mentioned above Public rights of way and definitive maps are nothing to do with this situation.
Vixtix...as I mentioned earlier you will do much better on Gardenlaw with this query...I haven't seen it appear yet !
cheers
stu.
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Hi Stufe35,
I'm just waiting on registration with Gardenlaw, hopefully I'll be on there later today. In the meantime I'm waiting to see the vendors deed of ownership which refers to his ROW. I'm beginning to feel my handful of straws slipping away here to be honest.
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There is a difference between a right of way, which is a legal highway and should be on the definitive map and would be for public use. Anyone can claim a right of way either by unobstructed use or historical evidence. It is a long process and you would have to right to object.
A right of access, which your neighbour says he has, would be for private use. I suspect you will need a lawyer at some point. Do you still have contact with the vendor of your land? If they knew about the easement and said nothing they aren't going to know but if they also knew nothing about it they could be useful. My friend has a right to move stock and vehicles over unregistered land.
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Vixstix,
Was your land and the wood now being sold ever in common ownership ?
Is the aledged route across the middle or at one side of your field ?
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Thanks again for advice. I'm afraid we are in the land of murky land deals, handshakes, and eccentric recluses here. My vendor lost the deeds to my land but I have the land registration showing a public right of way which is well established and not under dispute. I have friends and relatives who have lived close by the field all their lives and have no knowledge of any other Right of Way or Right of Access. The not insubstantial physical obstructions to any Right of Access, which have been in existence for over 30 years makes me hope this is merely a mapping error, but my optimism is flaking.
The wording from the new vendor is as follows, ''The woodland is sold with the benefit of a 20' right of way for all purposes with maintenance according to user''. I did try to discover who owned the land but as it was unregistered no searches or amount of detective work were successful. The land registry have no records in respect of the property.
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Hi Stufe 35,
the claimed access runs diagonally across the pasture area of my field, heading from my roadside paddock uphill to the boundary bank, fence and treeline.
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Sorry Stufe35,
never in common ownership as far as I am aware, though there are no deeds, I'm merely going on local knowledge.
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Should you confirm the existence of the ROW, whilst the forest it is forsale might be your best chance to make any changes that would improve the situation. Effectively some free money for the vendor if you can do this before he sells it.
Are there other routes to the wood ie could you offer cash to extinguish the route altogether ?
or is there scope to move the route to one side of your field so it impacts you less ? ie you can fence along one side and forget you even own it.
Can you afford to buy the forest ?--
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Sadly Stufe35 I can't afford the forest. I'm not married though....any wealthy chaps around?
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I was wealthy...until I got married ! :excited:
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I was just thinking...... you say you have a rare type of orchid growing in your field? Well if you inform the wildlife trust they might be interested in protecting it meaning that if anyone really wants a right of way across your land the wildlife trust would kick up a stink, because of the rare orchid habitat. Just a suggestion :innocent: :thinking: I hope that all goes smoothly and yes I would contact the solicitor who was in the selling of the land, plus the council too. Could you Keep us updated on how you get on?
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Yes, of course I'll keep you posted. I'm still waiting for the deeds. Strangely there is a tracked right of way that runs along the contour higher up the hill to the forest. This is not mentioned in the agent's description.
In the meantime I'm wondering if I can put a notice on my land asking people not to wander all over it in order to view the disputed access. I don't really want my fences being climbed over and my paddock traipsed through.
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Quite right, there's certainly no right of access by members of the nosing public ;)
Perhaps a sign saying 'Viewing of forestry strictly by appointment only' and the agent's and/or vendor's phone numbers?
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Does any one know if rights of accvess were ever recorded on theb old TF ordanance map sheets of around 1921 .
They used to show all the parish plot numbers and all manner of things I found mine ( 1993 0 in the records section of the county library , I was able to do a hand sketch as well as including the plot numbers & a filled in deep well dug in silts right on a corner where I was hoping to build .
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Just to update...there is no real update. I am still waiting for proof of the vendor's claim over my land. After taking legal advice I have asked the agent to produce their evidence within 7 days.
I'll let you know the next thrilling installment.
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any update on this?
I was looking at the sale details for the plot - and a big thing stood out, its sold in 2 lots and the lot affecting your land has no shooting rights with it, the other one does.
It states they were reserved to a previous owner - now that would scream to me, the access was given for shooting - IE the land was all in one ownership in the past, and the shooting rights were retained on paper - and the owner of said rights, put in deeds of access to get to thier shooting.
As you say your previous owner lost their deeds, its quite possible you dont own the shooting rights to your land - a convinient loss for the previous owner - and someone somewhere is sat with paper proving their rights.
Now this is the bit that could help you - Sight of this access may show its for shooting, or other specific purposes, so they may not be able to put a track in.
HOWever if the lot is sold seperate from the other lot, they will have ONLY the access across your land - and in that case, it is most likely the access was granted for general access - - Your best bet is to try and get them to buy a strip off you down the side of the field for easy straight access - and dont charge lots - be far and charge the value of the land in the area, and you should get a peaceful settlement.
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Latest news.
I now own a woodland!
I finally managed to buy the land with the R.O.W. claim over my field, so effectively the problem has disappeared.
Thanks everyone for your advice. Ultimately it was cheaper to buy it than fight it out in court.
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Great result !
You can now always sell it on with the right of way removed if required.
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Thanks Stufe35,
I'm afraid I'm in love with it now so I may have to build a hobbit house and move in. I've just asked for advice on signage. My fences are 'gappy' and I've no wish to stop folks enjoying the woodland but I may need to limit access in the future.
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If i were you i would start as i mean to carry on. If you alllow free access now how will you reduce in the future? Get fencing! :thumbsup:
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To be honest people have been walking their dogs on it for years......but I never said that!!
I think if I suddenly fence it I would seriously pee off the locals.
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To be honest people have been walking their dogs on it for years......but I never said that!!
I think if I suddenly fence it I would seriously pee off the locals.
If they have used it for years then they may put in claim that they have established a right. Are there actually any legal rights of way through there?
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They can carry on wandering but a few pigs might cause some to change their habits. Congratulations on a really good outcome. I suspect they didn't want it going to court either
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They can carry on wandering but a few pigs might cause some to change their habits. Congratulations on a really good outcome. I suspect they didn't want it going to court either
If they believe a right exists then the fencing and running pigs could be seen as an obstruction and result in a claim.
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However fencing for the pigs shows a reason and not just a nimby owner. I would fence a section for now and add pigs then next year fence more, move pigs. This way you are not suddenly stopping access for all.
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Do you actually want pigs? Seems there are two threads here about the same issue. Maybe close one?
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Hi all,
Were looking to buy a house where there is a shared drive.
The neighbour of the house that were buying owns the driveway.
The deeds that Ive seen has no mention of the drive being shared.
The houses were built in the 1930s and have garages, however they were added at a later date.
The neighbour brought their house 12 years ago, with the vendor of the house that we want to buy,
buying theirs 6 months later.
My question is,
because the driveway has served both properties before the current owners moved into their houses,
could it be argued that there is right of way/access for both properties on this driveway under the 20yr contestant
and uncontested use law?
Many thanks :0