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longletter
03-03-2011, 21:30 PM
A friend has a strip of unregistered land directly alongside his house, owner unknown. It has gates from the street and leads to my friend’s garage which he has never used as such. A neighbour has a pedestrian right of way over the land to the rear of her property. My friend has maintained the strip of land for the 25 years he has lived there.

My friend is considering applying for adverse possession. Would this be compromised at all by the existence of the right of way?

Would he have to show evidence of having tried to trace the current owner (presumably a descendant of the original owner) despite having been ‘in possession’ for over 25 years?

jeffrey
04-03-2011, 11:55 AM
Problem: has friend had exclusive occupation?
There's no need to trace the true [documentary-title] owner. In fact, doing so can sometimes amount to acknowledging that ownership, a step fatal to any claim for possessory title at HMLR.

longletter
04-03-2011, 13:18 PM
Problem: has friend had exclusive occupation?


I would say he has had exclusive occupation - has maintained it, had drains cleared, laid slabs, planted shrubs, grass etc. - but not exclusive use, in that the neighbour is entitled to pass across it to & from a small gate at the rear of her property. But I'm assuming that his acquiring the title would not affect her right of way. My question was whether the right of way would affect his right to acquire what is - for all intents and purposes - part of his property.

jeffrey
04-03-2011, 14:31 PM
But, you see, it is not [yet] part of his property. Access over it by the neighbour might present a hurdle, difficult (although not impossible) to surmount. He'd certainly need confirmatory Declaration evidence from that neighbour, to accompany his own, when applying to HMLR.

longletter
04-03-2011, 21:04 PM
He'd certainly need confirmatory Declaration evidence from that neighbour, to accompany his own, when applying to HMLR.

Would this be a simple declaration from the neighbour renouncing any claim to title of the land?

DISCOBOBULATED
05-03-2011, 00:01 AM
Its called adverse possesion

I take it your friend has a ROW over this strip and therefore has a legal right to be on it and maintain it.

longletter
05-03-2011, 01:26 AM
Its called adverse possesion

I take it your friend has a ROW over this strip and therefore has a legal right to be on it and maintain it.

Yes, he has a right of way and in theory maintenance costs should be shared with the neighbour who also has right of way. In practice, my friend alone has maintained the land for 25 years while the occupant of the neighbouring property (which changed hands about 5 years ago) merely walks across it occasionally. It is - 'geographically' at least - part of my friend's property. So it would make sense for him to have title too.

Lawcruncher
05-03-2011, 10:00 AM
Is this strip of land on the other side of a fence, wall or hedge that forms the boundary of your friend's house?

DISCOBOBULATED
05-03-2011, 14:01 PM
He has a right of way on this land and a right to maintain ,so how can he claim adverse possession.

I'm not one of the legal eagles of this forum , but he cant as far as I'm aware unless one of the more legally educated out there would like to jump in,put me right and educate me . Am i missing something

longletter
05-03-2011, 19:41 PM
Is this strip of land on the other side of a fence, wall or hedge that forms the boundary of your friend's house?

It is not on the other side of any wall or hedge. The boundary along one side is the wall of my friends house - with door.

DISCOBOBULATED
05-03-2011, 20:40 PM
Long letter

He has a legal right to be on this land due to the easement so his occupation cant be adverse

He also cant use the fact that he has been maintaining it as evidence towards any adverse possession claim because due to the easement he has a legal right to maintain and the owner has no powers legally to stop him maintaining it.

How would the owner know that that he was trying to adversely possess his land due to the above.

Lawcruncher
06-03-2011, 09:15 AM
It is not on the other side of any wall or hedge. The boundary along one side is the wall of my friends house - with door.

So, just to get this right, the strip of land is enclosed within his property?

Next question, is there any mention on his title of having a right of way over this strip?

longletter
07-03-2011, 23:56 PM
He has a legal right to be on this land due to the easement so his occupation cant be adverse.

He has a legal right to pass over it - surely this isn't incompatible with owning it as well?




He also cant use the fact that he has been maintaining it as evidence towards any adverse possession claim because due to the easement he has a legal right to maintain and the owner has no powers legally to stop him maintaining it

How would the owner know that that he was trying to adversely possess his land due to the above.

I should think the owner has been pushing up daisies long since and hence couldn't give a monkey's!


So, just to get this right, the strip of land is enclosed within his property?

Not exactly but it is enclosed. It is bounded on one side by the the side wall (with door) of his house, and on the other side by the wall of a neighbour who has neither access nor right of passage. Another neighbour does have right of passage over the length of the strip from the street end to the gate to her rear garden at the other end.



Next question, is there any mention on his title of having a right of way over this strip?

Yes, the same as the neighbour's but in my friend's case it enables him to enter his house via the side door (!) as well accessing his rear garden without going through the house.

pilman
08-03-2011, 19:01 PM
I did once try and claim adverse possession of a similar area that had been used in the same way as your friend has been using it.

The claim was rejected by land Registry because such use being made of it, which was primarily to drive along it to reach a parking space at the bottom of the garden of the property alongside this track, was considered to be equivocal with insufficient intention to possess the land being established.

Your friend's best method of knowing whether his claim will be accepted is to apply for Possessory Title to Land Registry.
Using the land as a right of way is normally considered an equivocal use of land not necessarily showing the required legal intent to possess with the exclusion of all others.

If the neighbour will agree to sign a statement of truth saying that at all times in the 5 years since they have occupied the neighbouring property, he/she has considered your friend to have been in possession of the land because at all times he treated it as his own, but it was accepted that the neighbour's property had a legal right of way over that land which was exercised because of your friend's knowledge that this was a legal right of way.

That is really all he can do besides signing his own Statement of Truth which should be worded in the best way possible to suggest that at all times he intended to occupy the land to the exclusion of all others, except a person with a legal right of way over the land, that he had always demanded to see evidence of, before allowing any such use.

He should then hope his application is decided by a Land Registry official in a good mood, although the on-site inspection by an Ordnance Survey surveyor will be needed to establish the situation on the ground.

As there are costs involved for the application and the surveyor's inspection, is it worth it if your friend's use of the land has not been interfered with for the last 25 years.
What are the benefits of ownership of a possessory title if there are rights of way over the land?

Lawcruncher
08-03-2011, 22:41 PM
I agree with Pilman. If he has a right of way over land that explains his being on it. If he shares that right of way with another that more or less excludes exclusive possession. If he has a right of way over the land no one can do much with it anyway so there is not really a lot to be gained by claiming it. Probably better to spend the Land Registry fee on a case of wine.

DISCOBOBULATED
08-03-2011, 23:29 PM
Originally Posted by DISCOBOBULATED

He has a legal right to be on this land due to the easement so his occupation cant be adverse.
He has a legal right to pass over it - surely this isn't incompatible with owning it as well?

The normal method of preventing someone from gaining enough years to qualify for a claim of adverse possesion is for the owner to evict the trespasser.

If he has a ROW over the land ,how would the owner go about evicting him if he has a legal right due to the easement be on the land.

jeffrey
09-03-2011, 11:54 AM
A Right of Way is a public right, obviating the need for any easement.

pilman
09-03-2011, 12:04 PM
This last posting is surely the strangest posting ever made by a practising solicitor.
A Public Right of way is one thing but a private right of way is totally the opposite.

Unless the word "Public" was used preceding the words "right of way", the posting is totally out of context.

Lawcruncher
09-03-2011, 12:43 PM
The normal method of preventing someone from gaining enough years to qualify for a claim of adverse possesion is for the owner to evict the trespasser.

If he has a ROW over the land ,how would the owner go about evicting him if he has a legal right due to the easement be on the land.

There is a distinction between using land for a specific purpose and occupying it. If you have a right of way over a path and enclose it with your land and grow vegetables on it, the owner can stop you doing that, but not from exercising the right of way.

The law of adverse possession is not straightforward. Ignoring the possibility that the status of occupation may change over time, possession is never adverse if there is some arrangement agreed with the owner which explains why you went onto the land in the first place. Accordingly, possession is not adverse if:

1. You have a tenancy

2. You have a licence

3. You have the benefit of some easement which allows you to go onto the land

4. Your presence on the land is explained by your being the owner's manager or agent

There are several points to bear in kind when making an application to the Land Registry:

1. They have staff who know as much about the law on adverse possession as anyone does

2. They have seen it all before

3. Their suspicion is aroused by an application that looks like an application to claim title to a path or other access

4. If they look at the applicant's title and find that it shows he has a right of way over the land he is claiming the application is doomed

jeffrey
09-03-2011, 12:52 PM
This last posting is surely the strangest posting ever made by a practising solicitor.
A Public Right of way is one thing but a private right of way is totally the opposite.

Unless the word "Public" was used preceding the words "right of way", the posting is totally out of context.
Wrong, of course. A Right of Way is a public right; an easement is a private right.
Misusing the former expression as akin to the latter expression obscures this important difference.
So, I regret, it's your own post that is strange.

Lawcruncher
10-03-2011, 16:26 PM
A "right of way" is simply a right to pass over someone's land. It can be private or public. If private it can be enjoyed as an easement or by way of licence.

Some easements are rights of way.

Some rights of way are easements.

jeffrey
10-03-2011, 16:30 PM
Hence the scope for confusion which your explanation highlights.

Lawcruncher
10-03-2011, 18:59 PM
Hence the scope for confusion which your explanation highlights.

But what then are we to call a right of way when it is an easement so that we know that it is not some other sort of easement?

jeffrey
11-03-2011, 10:48 AM
Easy!

Easement = private right (maybe not for access- could be for services etc.) in favour of one identifiable property (dominant tenement) over/along/under another identifiable property (servient tenement) in distinct ownership.

Right of Way = public right; access only; no need for identifiable dominant/servient tenements.

So they're quite obviously of significantly different natures.

Lawcruncher
11-03-2011, 13:10 PM
Easy!

Easement = private right (maybe not for access- could be for services etc.) in favour of one identifiable property (dominant tenement) over/along/under another identifiable property (servient tenement) in distinct ownership.

Right of Way = public right; access only; no need for identifiable dominant/servient tenements.

So they're quite obviously of significantly different natures.

I think we are going backwards here.

Say we have a conveyance that says:

Jim conveys to Bob All That property known as 52 Acacia Avenue Newton Together with a right of way over the path at the rear of 54 Acacia Avenue Newton to Hold unto Bob in fee simple

Are you saying this means that there is suddenly a right for the public to use the path?

jeffrey
11-03-2011, 13:49 PM
No- that wording obviously creates an easement. Please re-read post #24.
A [public] Right of Way is not property-specific. It arises not by Deed but by:
a. Act of Parliament** or SI or Bye-law; or
b. by the General Public's long usage.

**- Look particularly at the Highways Act 1980 (s.31-34, 130-130D, 610): http://www.legislation.gov.uk/ukpga/1980/66/contents Section 31 may be useful to you- here it is:

31. Dedication of way as highway presumed after public use for 20 years.

(1) Where a way over any land, other than a way of such a character that use of it by the public could not give rise at common law to any presumption of dedication, has been actually enjoyed by the public as of right and without interruption for a full period of 20 years, the way is to be deemed to have been dedicated as a highway unless there is sufficient evidence that there was no intention during that period to dedicate it.

(1A) Subsection (1):
(a) is subject to section 66 of the Natural Environment and Rural Communities Act 2006 (dedication by virtue of use for mechanically propelled vehicles no longer possible), but
(b) applies in relation to the dedication of a restricted byway by virtue of use for non-mechanically propelled vehicles as it applies in relation to the dedication of any other description of highway which does not include a public right of way for mechanically propelled vehicles.

(2) The period of 20 years referred to in subsection (1) above is to be calculated retrospectively from the date when the right of the public to use the way is brought into question, whether by a notice such as is mentioned in subsection (3) below or otherwise.

(3) Where the owner of the land over which any such way as aforesaid passes:
(a) has erected in such manner as to be visible to persons using the way a notice inconsistent with the dedication of the way as a highway, and
(b) has maintained the notice after the 1st January 1934, or any later date on which it was erected,
the notice, in the absence of proof of a contrary intention, is sufficient evidence to negative the intention to dedicate the way as a highway.

(4) In the case of land in the possession of a tenant for a term of years, or from year to year, any person for the time being entitled in reversion to the land shall, notwithstanding the existence of the tenancy, have the right to place and maintain such a notice as is mentioned in subsection (3) above, so, however, that no injury is done thereby to the business or occupation of the tenant.

(5) Where a notice erected as mentioned in subsection (3) above is subsequently torn down or defaced, a notice given by the owner of the land to the appropriate council that the way is not dedicated as a highway is, in the absence of proof of a contrary intention, sufficient evidence to negative the intention of the owner of the land to dedicate the way as a highway.

(6) An owner of land may at any time deposit with the appropriate council:
(a) a map of the land on a scale of not less than 6 inches to 1 mile, and
(b) a statement indicating what ways (if any) over the land he admits to have been dedicated as highways;
and, in any case in which such a deposit has been made, statutory declarations made by that owner or by his successors in title and lodged by him or them with the appropriate council at any time:
(i) within ten years from the date of the deposit, or
(ii) within ten years from the date on which any previous declaration was last lodged under this section.
to the effect that no additional way (other than any specifically indicated in the declaration) over the land delineated on the said map has been dedicated as a highway since the date of the deposit, or since the date of the lodgment of such previous declaration, as the case may be, are, in the absence of proof of a contrary intention, sufficient evidence to negative the intention of the owner or his successors in title to dedicate any such additional way as a highway.

(7) For the purposes of the foregoing provisions of this section “owner”, in relation to any land, means a person who is for the time being entitled to dispose of the fee simple in the land; and for the purposes of subsections (5) and (6) above “the appropriate council” means the council of the county, metropolitan district or London borough in which the way (in the case of subsection (5)) or the land (in the case of subsection (6)) is situated or, where the way or land is situated in the City, the Common Council.

(7A) Subsection (7B) applies where the matter bringing the right of the public to use a way into question is an application under section 53(5) of the Wildlife and Countryside Act 1981 for an order making modifications so as to show the right on the definitive map and statement.

(7B) The date mentioned in subsection (2) is to be treated as being the date on which the application is made in accordance with paragraph 1 of Schedule 14 to the 1981 Act.

(8) Nothing in this section affects any incapacity of a corporation or other body or person in possesion of land for public or statutory purposes to dedicate a way over that land as a highway if the existence of a highway would be incompatible with those purposes.

(9) Nothing in this section operates to prevent the dedication of a way as a highway being presumed on proof of user for any less period than 20 years, or being presumed or proved in any circumstances in which it might have been presumed or proved immediately before the commencement of this Act.

(10) Nothing in this section or section 32 below affects section 56(1) of the Wildlife and Countryside Act 1981 (which provides that a definitive map and statement are conclusive evidence as to the existence of the highways shown on the map and as to certain particulars contained in the statement) .

(10A)Nothing in subsection (1A) affects the obligations of the highway authority, or of any other person, as respects the maintenance of a way.

(11) For the purposes of this section “land” includes land covered with water.

(12) For the purposes of subsection (1A) “mechanically propelled vehicle” does not include a vehicle falling within section 189(1)(c) of the Road Traffic Act 1988 (electrically assisted pedal cycle).

Happy now?

Lawcruncher
11-03-2011, 14:56 PM
No- that wording obviously creates an easement. Please re-read post #24.

That is the very problem - I did read that post and in it you said:


Right of Way = public right; access only; no need for identifiable dominant/servient tenements.

jeffrey
11-03-2011, 15:01 PM
True. Using the words 'right of way' in a Deed, when one instead intends an easement, inevitably:
a. cannot create a Public Right of Way; but
b. confuses everyone by looking as if it does!

pilman
17-03-2011, 18:51 PM
Having carefully read through section 31 of the Highways Act 1980 which was posted by Jeffrey, I failed to see any mention of the three words "right of way".
What I did see were numerous references to the single word "way" being a way over which the public have a right to pass and repass.

When I commented on this subject previously. in post #18 after reading your post #17 your response was to confirm that your interpretation was in deed correct, and it was my interpretation that was incorrect.

You are normally quite pedantic about use of words, so I challenge you to quote any definitive authority that supports your contention that the words "right of way" can only in a legal sense mean a Public right of way.
Section 31 HA1980 certainly does not.

jeffrey
18-03-2011, 10:16 AM
I agree that 'way' is used (statutorily) to mean a Public Right of Way.
I agree that 'easement' is used (statutorily) to mean a private right benefitting one property and burdening another (usually one retained by the party who grants the easement).

pilman
18-03-2011, 11:12 AM
Jeffrey, you are prevaricating on this one.

There are dozens of easements that can be included into a conveyance or transfer, which is why the words "right of way" are used to define exactly what easement is being referred to.
When people talk about those rights of way being used by members of the public, that is when the words used become "public right of way".

As I have now seen the words "right of way" in hundreds of deeds during the course of a 40 year professional career in land acquisition, I stand by my original statement that I found it strange that a solicitor would make such a statement as you made in posting #17, although for the most part I have been in awe of the amount of sensible advice you do offer on this web-site, which shows how much time you spend helping others.
That is worth applauding, but not your interpretation of this commonly used phrase.

jeffrey
18-03-2011, 11:18 AM
The fact that a technical expression is mis-used by laymen is irrelevant. Keep accurate, despite all.

pilman
18-03-2011, 11:35 AM
So from that last response it seems that every deed that used the three words "right of way" drafted by lawyers or their draftsmen for many hundreds of years have meant that a public right of way was granted every time the words "right of way" were used in a deed.
Lawyers are not laymen, so why did these words get used out of the context you claim for them.

jeffrey
18-03-2011, 11:44 AM
So from that last response it seems** that every deed that used the three words "right of way" drafted by lawyers or their draftsmen for many hundreds of years have meant that a public right of way was granted every time the words "right of way" were used in a deed.
** To you only! I never claimed that and no-one other than you ever has either.

You know full well the major differences between an easement and a Public Right of Way (and how they arise). Everyone involved knows that a Deed cannot create rights for the General Public. Why persist in:
a. confusing one with the other; and
b. confusing laymen and LZ members who, mostly not being lawyers (as you correctly mention), inevitably run the risk of conflating wholly different concepts by your lack of clarity?

Lawcruncher
24-03-2011, 22:50 PM
I fear it is you Jeffrey who is the one sowing confusion where there was none before. You seem to be leaving us with no words to describe an easement (or indeed any other right than a public one) that allows the use of land between two termini for access. An easement can be (inter alia) a right of support, a right of light or a right of drainage - so why not a right of way? You cannot simply refer to the right to go across land (where it is an easement - it could also be enjoyed by licence) as "an easement" and expect people to know that you are referring to a right to go across land.

On referring to Megarry & Wade under the section headed Species of Easements the first sub-section is headed Rights of Way.

jeffrey
25-03-2011, 12:08 PM
Yes- as you say, an easement can be (inter alia) a right of support, a right of light or a right of drainage.
It can also be for access, either on foot only or with vehicles; for a defined purpose or just to pass/repass.
What you think of as a 'right of way' is simply an easement for access.

Indeed, the ambiguous phrase 'right of way' connotes any of:
a. a [public] right of way;
b. an easement (legal or equitable); and
c. a licence/wayleave.

Precision in naming it (and using the word 'easement' if that's what you intend to grant) removes ambiguity.

Lawcruncher
25-03-2011, 21:07 PM
So, R.E.Megarry, Q.C., M.A., LL.D., (Cantab), Hon. LL.D (Hull); A bencher of Lincoln's Inn and Reader in Equity in the Inns of Court and H.W.R.Wade LL.D.; D.C.L; Professor of Law in the University of Oxford had it wrong?

A right of access not necessarily a right of way.

If there is a context, the phrase "right of way" is rarely ambiguous. There are many words used in the law that have different meanings according to context viz. "equity" and "tenant"; "right of way" is another.

As for calling any specific right an easement there are hundreds of thousands of deeds where easements are granted without the word "easement" being used at all. Are you seriously suggesting that if in a Land Registry transfer of freehold land it says "A transfers to B the land...together with a right of way on foot only over the land tinted brown on the attached plan" that no easement is granted or that there is the remotest possibility that a court would hold that no easement was granted?

jeffrey
27-03-2011, 14:29 PM
Nope. If a grantor grants an easement, even if not using that word, the grantee obtains an easement.

DISCOBOBULATED
27-03-2011, 18:27 PM
So if the granter grants a ROW for all purposes with out using the word easement ,it will legally be enough for it to be deemed that an easement has been granted.

I'm happy to go with that, however it must mean that the words Right of way (ROW) are now deemed to legally apply to a private right as well as a public right (PROW).

jeffrey
28-03-2011, 09:49 AM
Yes. If one uses ambiguous or incorrect wording (as Lawcruncher would have you do, apparently), the law may construe it as a legal easement nevertheless. A parallel is an owner who stipulates that a licence to occupy is intended and being granted: if it has the hallmarks of a letting in the nature of a tenancy, that's what it is- and so with an easement in insufficiently clear wording.

A final point:
I agree that 'right of way' can include 'easement' [see post #36]. It's the ambiguity that causes the problems.

Lawcruncher
28-03-2011, 14:30 PM
This is getting silly.

Let's take the word "wall". It could refer to the wall of a building or a free-standing wall. You are doing the equivalent of (a) insisting that "wall" can only mean the wall of a building (b) insisting that a free standing wall must be referred to as "a man-made structure" and (c) refusing to acknowledge that "man-made structure" can refer not only to a free-standing wall and the wall of a building, but also to any other structure made by man.

jeffrey
28-03-2011, 14:59 PM
No, you're wholly wrong. Either you understand the word 'easement' or you don't.

Lawcruncher
28-03-2011, 16:05 PM
Au contraire! I am wholly right! I think we both know what an easement is. The difference between us is what may correctly be called "a right of way". If we accept that "right of way" is synonymous with "a right to cross land between two points" then my point is quite simply that in relation to land a right of way may subsist as:

1. a public right; or,

2. a private right which may be

(a) an easement; or,

(b) a purely personal right

I confess I am genuinely puzzled why you think that the term should only apply to public rights. In thirty years of practising the law I never heard anyone come even near to suggesting that the use of the term should be so restricted. Nor indeed, did I ever come across a conveyancer reluctant to use the term to describe an easement which allows access to and egress from land. As pointed out above, Megarry & Wade does not draw back from using "right of way" to describe a species of easement.

It is surely no more than a case of categories overlapping so that:

Some rights of way subsist as easements and some do not

and

Some easements are rights of way and some are not

Always Problems
28-03-2011, 16:08 PM
Why dont you just apply for "adverse possession" disregard the Right of Way's existance as you are applying for "Ownership" the right of others to "Pass and Repass" is a totally seperate issue as they are a "Third Party". Get a decent plan done first and get a Professional to submit it. You may find that the Land Registry will send a Surveyor to do an inspection and will turn up when you are not there (sods law) and go round chatting to neighbours if the boundary is not clearly marked. You may also find that the LR Surveyor with OS plan in hand, standing in the middle of the plot, looking round as if he has just landed on Mars, will by his very presence invite nosy neighbours with offers of assistance, thus kicking your application into touch.

jeffrey
28-03-2011, 16:29 PM
Why dont you just apply for "adverse possession" disregard the Right of Way's existance as you are applying for "Ownership" the right of others to "Pass and Repass" is a totally seperate issue as they are a "Third Party". Get a decent plan done first and get a Professional to submit it. You may find that the Land Registry will send a Surveyor to do an inspection and will turn up when you are not there (sods law) and go round chatting to neighbours if the boundary is not clearly marked. You may also find that the LR Surveyor with OS plan in hand, standing in the middle of the plot, looking round as if he has just landed on Mars, will by his very presence invite nosy neighbours with offers of assistance, thus kicking your application into touch.
Adverse possession cannot exist unless the true owner has been excluded. Can you prove that, OP?

Always Problems
29-03-2011, 11:13 AM
Adverse possession cannot exist unless the true owner has been excluded. Can you prove that, OP?

Perhaps the "True Owner" no longer exists or his successors are unaware of their entitlement. If the OP has a reasonable chance of success, he should consult a specialist who would indicate the requirements for an application to be successful and then it would be up to the Land Registry to give grounds for rejection. Nothing ventured nothing gained.

jeffrey
29-03-2011, 11:40 AM
There is always a 'true' [= documentary title] owner, even if he/she is unaware of that.