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Jul, 2014

Wednesday

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  1. #1

    Default Can one REMOVE an easement by Prescription?

    I rented a flat in a house in 1980 and was told by the Landlord that, I could park my car on a piece of land at the rear, I subsequently parked my car on this land from 1980 when I rented the house, until I subsequently purchased the house in 1986, I have continued using the land to date,

    However, this land turned out to be unregistered, I complained to my conveyance Solicitor that the land was not included in my Title Deeds whereby, he suggested that I apply to land registry for adverse possessory title, this I did, but land registry refused, subsequently, when my house was sold in 1993 the new owners were claiming access over the unregistered land by easement by prescription.

    Prior to my house being sold in 1993, I enclosed the land on all sides, I erected a wall between the unregistered land and the land belonging to the house under its Title Deeds border, I had gates that were secured with a padlock and chain, however, "somebody" knocked down my wall and stole my chain/padlocks and enclosure gates in 1996.

    The fact that I had enclosed the land until 1996 and continued to use the land to date (2009), I believe, defeats the new owners claim of access by easement by prescription under the 20 year uninterrupted access rule,

    The new owners sold the house to Developers in 2009, the Developers have built a house on the land belonging to the house that they purchased within its Title Deeds, and the only access to this new build house, is across the unregistered land which I had enclosed.

    I recently took out an injunction in the County Court in order to prevent the Developers from accessing the unregistered land, however, the Judge ruled that the land enjoys a “continuing right” of access because previous owners to my purchase of the house had used the unregistered land as access.

    Have I the right to appeal/dispute the Judge's decision, as I did enclose the land which I believe defeats the Developers claim to access over the land under Easement Law?.

  2. #2
    Join Date
    Sep 2006
    Location
    Sheffield
    Posts
    39,411

    Default

    Are you confusing/conflating:
    a. the Limitation Act 1980 and acquisition of land by adverse possession; and
    b. the Prescription Act 1832 and acquisition of prescriptive easements?
    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
    4. *- Contact info: click on my name (blue-highlight link).

  3. #3

    Default easement under the prescriptions act 1832.

    Thank you Jeffrey for your reply and interest,

    The Developers are claiming access over the unregistered land by easement under the prescriptions act 1832.

    There is a new development in this case, I have today spoken to land registry and they have told me, and are sending proof to me, that, the unregistered land was, in 1954, attached to an adjoining property (call this property plot 2) therefore, the unregistered land was not attached to the house that I and the developers subsequently purchased, albeit the developers also purchased the property that is proved to have the unregistered land attached to (plot 2), however, they are not claiming access to this property because it has its own separate access.

    Therefore, it seems that, the previous owner who sold the house to me, had “illegally” occupied and accessed over the unregistered land in order to access a garage that they at sometime in the past installed at the rear of their/my house, this factor is why I queried with my conveyance Solicitor after I purchased my house, why was it that, the unregistered land was not on my Title Deeds, now I know why!!.

    In view of the new information from land registry abovementioned, does the claim of access by easement by prescription, by the Developers, now fail? as the original access was illegal,

    Consequently, can the Judge award a continuing access under easement by prescription which was originally illegal?, and, have I a got a case to have judgement set aside, with a new hearing presenting the new evidence which would endorse my application to the Court for an injunction against the Developers access,?

    Or would it be the case that, the Developers still have a “continuing” right of access over the unregistered land because, the previous owners had (illegal) access including myself.?

    Furthermore, where does this leave me with regard to my continued access to the unregistered land, and my claim to land registry of adverse possessory title?

    Regards Billand

  4. #4
    Join Date
    Sep 2006
    Location
    Sheffield
    Posts
    39,411

    Default

    Too complex for here, I regret. You need proper paid-for advice to secure your position.
    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
    4. *- Contact info: click on my name (blue-highlight link).

  5. #5

    Default

    Thanks Jeffrey,

    The reason that I haven’t employed a Solicitors is the expense that I cannot afford, that is why I have been handling this case on my own,

    However, I am looking for a Solicitor who might want to take on the case on a “win percentage” situation, especially as the Developers house, built at the rear of the unregistered land, is on the market at £870,000.00, and the unregistered land is the only possible access, then the Developers would have to pay a substantial price if I win the case, because the Developers will not be able to sell or let the house!!

    Do you or anybody know of such a Solicitors firm that might want to take on this case?

    Regards

    Billand

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