access rights issues

[Johny Walker]

i think you need a chat to a land agent asap !!

[chestnut]

the access granted is to named persons only - in a covenant on the deeds

 

it is not an easement - so is not a right of access that would carry from one owner to another (i hope)

 

it is very complicated - but i will try to explain:

 

"a" bought land off "b" - "a" made the track for himself - he also made other tracks / access routes (none of which had permission from any local source - as far as i can ascertain)

 

anyway "a" went bust and "b" got the land back ("a" and "b" are also best mates)

 

dad had bought the main woodland off of "b" but had to get access through a convoluted way so "b" then offers to sell my dad some of the land - ie the area where "a" had made the track - basically giving dad much better access to his woods

 

the condition was that dad gave "a" access along the track if and when he needed it

 

"a" had used a variety of different tracks on his land - to access land at the rear (set up as vines)

 

this is where it gets really "grey" as far as i am aware - the receivers took over the land but the receivers efforts failed to keep the business viable - but they did actually put in writing that the access rights should be altered (in dad's favour)

 

the land next door sold off - the new (current) "c" owner also a good mate of "b" - although "b" is now longer with us

 

"c" initially tried to keep the business going and i think they put in a manager to run the site - they caused the damage to dad's track - mostly with heavy machinery (tractors etc) then there was a foul sewerage leak - which ran onto dad's track - this damage was a direct result of their negligence

 

they broke fences - ruined the track - made the site insecure - and as a result dad had many cases of vandalism and thefts etc

 

anyway the business failed - but "c" still owns it i believe - and the place has been left empty and unattended for some 10 or 12 years

 

an investment company - based at the address of "c" (so probably his sons) are now trying to bully my dad

 

dad has seen a solicitor - one junior (not very convincing imho) and more recently a specialist solicitor (supposedly) who actually thinks that they have no chance in court - but i really don't want it to go to court - for dad's sake

 

i guess i was just hoping that someone had some ideas of loopholes in the law relating to covenants relating to rights of access

 

i have done mountains of research myself - and i think i have found a few points of law that will be very helpful

 

fingers crossed that it works out ok in the end - as dad doesn't have much hope of many more years of action and i would hate for him to go out fighting in court as opposed to enjoying the peace and enjoyment of the woods

[chestnut]

The devil is in the detail and without the full wording of the covenant it’s difficult to be definitive but.....

 

If they have a covenant granting access you can’t stop them using it even if they don’t pay. Your father’s only option is to allow access is to allow access but remind the dominant tenement that they exercise their right with the burden of maintenance. It would be prudent to get a couple of estimates for any future works and agree the works in writing with the dominant tenement. That way if they refuse to pay you can use the correspondence in any recovery action.

 

It would be wise to record the current condition of the track for future reference. If the covenant says maintained (they usually do) then the burden only extends to maintenance and not improvement.

 

Usage of the easement will depend on the wording. The most common is for all purposes and at all times but some are subject to restrictions.

 

the covenant does not mention or grant an easement

 

and it names the original purchasers of the plot next door as the beneficiaries of the rights of access - it does not suggest that the rights would run with the land

 

the covenant states that "the purchaser paying a fair proportion according to user of the cost of repairing and maintaining the track"

 

they messed it up and failed to remedy it - that was 10 to 12 years ago - in that time dad had no choice but to make good that ruined track so that he might use it himself

 

the ownership hasn't change exactly in that time - but the adjoining land is now being "managed" by an investment company which is based at the other owners home address

[renewablejohn]

Is the access the only route to the site if so the courts would not allow the access to be extinguished however if it is only convenience that they use your track then you could have a case that the access had been abandoned. A good land agent should be able to sort it rather than a non specialist solicitor.

[chestnut]

Is the access the only route to the site if so the courts would not allow the access to be extinguished however if it is only convenience that they use your track then you could have a case that the access had been abandoned. A good land agent should be able to sort it rather than a non specialist solicitor.

 

no it is not the only access - or the main access to the site

 

they have a great big access route - straight off the public highway - big layby type pull in - concrete road up to buildings and a huge amount of car parking space too

 

and they have plenty of access points to get to the vines behind too

 

the use of dad's track is completely unnecessary with regards to getting to their land

[renewablejohn]

If it was me I would appoint a good land agent and then install locked gates at either end of the access road and then if they think they have a case let them take you to court. I think a judge would probably rule in your favour so long as you can prove that you have spent the money in repairing the road and can quantify it and the other party was unwilling to contribute to the road. It makes a big difference that they have independent access to the site.

[chestnut]

thanks - i hope so

[treequip]

Like I said the devil is in the detail, rights to use land that you don’t own are called easements even if they aren’t described by that word in the deeds.

 

I am with the deny access option. Make them do the legwork and spend on advocates.

[renewablejohn]

You could just work out how much you have spent over the last 10 years on maintenance and add to it the cost of installing gates locks etc. Divide the figure by 10 to give an annual maintenance charge which you then invoice them. Once paid you issue a key on an annual basis therefore establishing your right to receive an annual maintenance fee in return for access. Again speak to a good land agent they deal with this sort of matter on a daily basis and can handle the legal speak and stress on your behalf.