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Clare
Clare, Family Solicitor
Category: UK Family Law
Satisfied Customers: 28802
Experience:  25 years experience of all aspects of family law
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For claire. Two Leaseholders either side of an unregistered

Customer Question

For claire. Two Leaseholders either side of an unregistered plot belonging to their common freeholder each with easements over the plot have an equal right to make use of the space?
Submitted: 1 year ago.
Category: UK Family Law
Expert:  Clare replied 1 year ago.
HiCustomer
Is this a different piece of land to the one that actually was Registered to the neighbour?
Claire
Customer: replied 1 year ago.

Hello Claire ...I am picking up our conversation from the last which was halted by a demand for payment. This was then not accepted due to an 'access denied' note...very odd. But I am on the sub scheme so I wonder if you would give me the benefit of my last question and your answer to it please . As its not visible to me - but just for you to know what happened and why I appear to have abandonned the thread (in addition to not liking the answer...with which i still take issue by the way!!).


Are you the same Claire (just a new pic?). Is that it? Or a new person taking over?

Expert:  Clare replied 1 year ago.
Hi
There was a service problem yesterday - try going back now
However if it is the same piece of land then it is not Unregistered is it - it is in fact Registered in your neighbours name?
Claire
Customer: replied 1 year ago.

BY MISREPRESENTATION and ten years is not yet up so thanks for reminding me I'll put it an application for a determination to stop time running against my interest.

Expert:  Clare replied 1 year ago.
Hi
Who misrepresented what?
From what you have said it was either a mistake by solicitors or the Land Registry.
Either way the only person who can challenge it is the Freeholder. They have not chosen to do so so the Registered Owner is indeed now the owner - and there is no challenge that you can make.
Claire
Customer: replied 1 year ago.

Rubbish!

Expert:  Clare replied 1 year ago.
Hi
Thats fine - and for your sake I hope that the Land Registry agree - but the fact is that your neighbour IS already the Registered Owner (if U have understood you correctly - which I may not have done)
Since he IS the Registered Owner then the only person who could reverse that is the Previous owner - who as I understood it is not willing to do so.
The arguments that you have put forward would only work if the property had been Registered with Possessory Title only - OR if it was still Un registered
In those circumstances ALL the arguments you have put forward would be totally valid
However I know this is not what you want to hear so would you like me to opt out?
Claire
Claire
Customer: replied 1 year ago.

Do not opt out! I wish you to apply your brilliant mind further and I'm enjoying the mental exercise....

Expert:  Clare replied 1 year ago.
Hi
Now I need a lie down!
Claire
Customer: replied 1 year ago.

enjoy your siesta (no not your fiesta!!)

Expert:  Clare replied 1 year ago.
Hi
I shall try!
Claire
Customer: replied 1 year ago.

Here's my application

Attachment: 2013-08-27_204630_application_1.pdf

Attachment: 2013-08-27_204658_applicattion_2.pdf


Any comments?

Expert:  Clare replied 1 year ago.
Hi
You know what I think - but it is your privilege to make the application!
Claire
Customer: replied 1 year ago.

well how is it presented? Is it coherent?

Expert:  Clare replied 1 year ago.
Hi
A few flaws I am afraid
You have not told the court which Act you are making the application under.
You have not given any details whatsoever of the basis on which you believe you are entitled to make the Application
You may find this article helpful
http://www.inbrief.co.uk/civil-court/application-notice-n224.htm
http://global.oup.com/booksites/content/019927780X/ch_36
Claire
Customer: replied 1 year ago.

thank you so much but unfortunately the links don't work (may have been deleted?). Are you possibly able to send The live links...underlined in blue? (like your name to see if you're in!!?)


I did check in brief but was none the wiser.


What was the name of the OU article ?


Should i be completeing a part 8 application too?

Expert:  Clare replied 1 year ago.
Hi
I cannot create hyperlinks at the moment - but cut and paste should take you there!
Caire
Customer: replied 1 year ago.

i got there by typing in but message saying page not availablle. thank you for c and p suggestion...but same result.

If this matter is heard and i don't suceed on say one out of the 3 issues are costs awarded proportionately? how much might they be?

Should I also have completed a Part 8 Form ? If so can I assume the Judge will advise me but will respect the date of receipt for the purposes of stopping time running against my interest?

Expert:  Clare replied 1 year ago.
Hi
If you go ahead with the application as it you will face costs I am afraid - and they could be thousands (they shouldn't be - but COULD)
If you highlight the links and right click it should give you the option to be taken there - I have run them both again and it has worked
Claire
Customer: replied 1 year ago.

i don't think its been served.


maybe its just stuck in the system. anyway thank you so much for the suggestion of checking the fr1...which I've now done...the small plot may have been conveyed to my neighbours BUT the most incredible thing is that by way of acknowledging our concern back in 2003 - the freeholder of the remainder of the communal parts has arranged in the plan which is not obvious from the Land reg plan perhaps due o a mistake - that the neighbour should access their garage via the back of their garden instead of cutting across behind us which was driving us mad. I am so grateful.


Although the route behind us was used for maybe 20 years only for 10 years has it been used by the neighbour in their new status as a freeholder so I understand we can still ask for this to be enforced and am wondering about the best way to go about this as their garage was closed off by their predecessor.

Expert:  Clare replied 1 year ago.
Hi
So in fact it is clear on the map which access they should use - I suggest that the starting point is to get a copy of the paperwork to them so that they can see it before you consider any enforcement action
Claire
Customer: replied 1 year ago.

yes ok ...quiet and simple!


I will do that.


Perhaps I should rate you now but may I still continue to confer with you?

Expert:  Clare replied 1 year ago.
Hi
You can always ask for me next time - or use my name in the question title!
Claire
Clare, Family Solicitor
Category: UK Family Law
Satisfied Customers: 28802
Experience: 25 years experience of all aspects of family law
Clare and other UK Family Law Specialists are ready to help you
Customer: replied 1 year ago.

ok...well thank you very much for your help! The very best thing was the FR1 idea ...its solved everything!! Can't believe we only just found out.


 


Best wishes


 

Expert:  Clare replied 1 year ago.
Hi
You are most welcome I hope all goes well
Claire
Customer: replied 1 year ago.

have you heard of simmonds v dobson!...I can't find full details of the case but it applies.

Expert:  Clare replied 1 year ago.
Hi
I think you mean Simmns - and it might IF this wasn't Registered land and IF the documents weren't still available
Claire
Customer: replied 1 year ago.

oh no....I was relying on it...but cannot now find the earlier reference I had to it.


Can you direct me please?


Was it not a case where 20 years user was disregarded until the parties became Freeholders?


....as the would-have-been servient proprietor argued he could not have known that permission from their joint Freeholder was not being given for a shortcut to be taken...and he won.


in my case 20 years may have operated prior to the neighbours purchase of their freehold....but only ten years since they obtained their freehold reversion. i have only now found out (thanks to your suggestion of obtaining the FR1.........you brilliant brilliant person) 10 years later.


Can you help for a further tip?


 


 


 


 


 


 

Expert:  Clare replied 1 year ago.
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Customer: replied 1 year ago.

Thank you for that. I had found it previously, but, adding the word 'easement' made all the difference. Thank you again.

Just to summarise the established principle (is this what Simmons confirms? I am still not able to find the 'story'. Do you know the story out of interest...within the store of that brilliant mind of yours!!?) being that my leasehold neighbour although possibly together with his predecessor had 20 years user cutting onto a communal path behind me (but now excluded from this action by his Deed Plan) could not suceed with a prescriptive claim on the basis of lost modern grant because....the period of time which counts did not begin until he obtained his Freehold reversion. He thus became a fee simple owner entitled to claim against his fee simple predecessor in title (given the prior unity of title that existed) only after 20 years of uncontested user?

So there is absolutely no way she could suceed in a claim if I block the route if they are difficult about it ten years now down the line...but I will try to be nice(!!) .

In the first instance should I for example offer to help with the cost of them re-opening the back of their garage..or is it for them to claim against their predecessor? What about the rule that changes after so many years are deemed to be unenforceable by a Freeholder? Does this enter into the picture?

By contrast as there is no other way I can get to the back of my garage would my way of going be deemed to be essential? (Actually tell you want I'll ask for you about this in a new question).

Expert:  Clare replied 1 year ago.
Hi
Remind me - the paperwork actually shows the route that should be used?
Claire
Customer: replied 1 year ago.

It shows the area behind my property not being subject to colouration where they are permitted to pass.


The garage forecourt area is coloured in for their benefit...but what had previously been marked as a communal path going up as far as the boundary of their property but not necessarily across it - is left uncoloured and so no longer benefits my neighbours by design. It is a great relief.


This path leads up to my rear garden entrance.


It was intended to serve my property exclusively (except on occasion for other residents for minor maintenance works, presumeably, going in the opposite direction (there is a sort of cross roads behind my back entrance-way at present....not yet able to accomodate a gate due to the interference of my neighbour.


The path they have hi-jacked (well their predecessor cut steps leading down to join the accessway) does not extend all the way along the back of the garages - perhaps as we are not expected to stray beyond our own garage backs).


Could send pics? And plans?

Expert:  Clare replied 1 year ago.
Hi Mary
Go on send the plans and I will do my best with them!
Claire

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Clare
Clare
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25 years experience of all aspects of family law