I own two properties fronting an open square in Penzance and, in common ten or so of my neighbours, have the following rights specified in the respective individual Conveyances -"Together with a right for the Purchaser and his successors in title owner or owners for the time being of the said property and his and their undertenants servants and licensees in common with all other persons for the time being having the right like at all times hereafter by day or by night and for all purposes connected with the use and enjoyment of the property hereby conveyed and with or without horses and carts or carriages of whatever description to pass and repass over Victoria Square from Bread Street to the property hereby conveyed and vice versa TOGETHER ALSO with the benefit of such rights of way as the Vendors may have over the passageway between Nos 7 and 8 Victoria Square"The terraced residences on three sides of the Square were constructed in what was once an small quarry and at one stage during the first half of the last century most if not all of the properties, along with the open land forming and comprising the Square was in a single ownership. The residences were sold off individually over a period of time up to the late 1950's leaving the vendor only with the open square-shaped area of land forming the frontage to all of the dwellings. At that time the fourth side of the Square there were garages that were let to the Post Office. It is understood that the open land was sold at or about the time of the sale of the last of the dwellings to one of the residents (who resided in No 8) and operated a motor body repair business in a corner building. When that person ceased trading and sold his property in the Square it is believed that the open land was disposed of (probably as a gift) to the local authority - the Pernwith District Council who transferred it a Housing Association now superceded by the Cornwall Council.Penwith Council then subsequently turned the open square into a formal residential parking area pursuant to the formal procedures under the Road Traffic legislation. A formal planning permission was granted (by the SAME COUNCIL) for the parking use which incorporated a restriction preventing residents from extending "their property on to the common", i.e. the open square over which their title deed s gives them inherent rights of usage and enjoyment. It is not known what if any consultation took place with the residents at that time but it seems that there was no major objection as all residents were offered a parking space aat a very minimal annual charge. It seems that the promised aesthetic improvements to the surface and layout of the open area could have had some bearing in the matter. It has also been suggested that more parking permits were/are being issued than the spaces that exist.The matter has been brought to a head of late buy the minimal charge (originally £1 per annum) proposed to be doubled from its current £120 to £240 and then to £450. In the 1950's only very few of the residents had cars and they (and their visitors) could park anywhere they wished on the 'square' without interuption. The matter has now come to a head with the Cornwall Council who in response to representations have amended their increase in the next financial year to £10. However, it seems that there was no formal conveyance document when the land was transferred to the local District Council. The Cornwall Council however are now adamant that they have acted in no way unlawfully as they are still permitting, magnanimously so in their opinion, access from the public to the highway over a defined route over the perimeter of the Square.I apologise for writing at length but I wanted to explain the circumstances as fully as possible. The Cornwall Council insist that they have done nothing to infringe the rights that have for a great many years have been, and STILL ARE BEING, handed on via the title deeds of successive owners. They also contend that the Parking Places Order is legal as is their right to levy parking fees. This latter point is of course not disputed - what is both questioned and disputed is the initial right to make an Order under traffic legislation that in effect denies the residents their rights in perpetuity to "enjoy" the whole or any part of the open area of Victoria Square. This includes their rights in perpetuity, which were exercised in practise up until the Parking Order was made and the individual spaces laid out, to pass and repass (in vehicles or on foot) over the whole open space. The residents are now considering challenging Cornwall Council (and its predecessors) as to their rights and legality in making the Order in the first place and the nullification of the rights as granted through their title deeds. Your advice would be appreciated.Paul Gooding (XXXXX@XXXXXX.XXX)
Province/Country relating to question : Penzance, Cornwall, UK
submitted this question previously but got no response due to incorrect email address
Hi PaulI have read through everything. Thank you for the comprehensive post. A couple of points occur to me which are, I am afraid, not particularly positive.Firstly, a right 'to pass and repass' is not a right to park. So the Conveyances themselves do not grant any right to park on Victoria Square free of charge (or at all) which the Council could be blocking. It would theoretically have been possible for such rights to have accrued through long use though.Secondly, you would not have had a right to 'extend onto the common' even before the Council converted it.The only way that I can see that the Council would have acted unlawfully would be if the parking area prevented you from exercising the right of access over the square. e.g. if they gated the access or sought to prevent you from driving across the square without paying.
Hi Chris - thanks for your response - I agree fully with your two initial observatioins but, with respect, these do not cover my specific queries and concerns. I will therefore try to be a lttle more succinct in this follow-up. Firstly, Victoria Square has only one point of ingress and egress from the public highway. The original nineteen dwellings - No's 1 to 18 (plus Albert Cottage) on three sides of the Square, are entitled through their title deeds to "rights of use and enjoyment" of the open land forming the Square. All dwellings were built as part of a singular development.in the mid-nineteenth century and upon completion were leased 'en bloc' in 1863, such lease continuing its full term. Although most, if not all, have individual provision in title for 'rights of access' to their properties, I contend that such 'documentary entitlement, is superfluous, and has been for a very long time because (a) there is only one means of accessing the Square and (b) 'prescriptive' rights of way across the square would therefore have been secured to each property a great many years ago. Do you agree with my contentions in this respect please?
Up until the open land forming the Square was transferred to the former District Council in 1973, all residents in the Square, together with their visitors and members of the public, tradespeople, delivery vehicles, etc who had legitimate reason to call in the Square had uninterupted user over every inch of the Square. The surface of the Square was then mainly loose gravel and although there was a concrete footpath fronting the properties on three sides of its perimeter (the fourth side then comprised garages let to the Post Office). My query on this point is therefore - can permanent rights of way (or rights of usage) be established through ongoing uninterupted pedestrian usage for over a century and likewise for vehicular usage although to a much lesser degree?
The title deeds of one of my houses ( I have as yet been unable to check on the other) provides for me to have "the right of way over the entrance to the said Square
, etc., etc., and the right to use the open space of the said Square in common with all other persons entitled thereto and....." Can you please, very briefly explain how I, or any other person like entitled, can exercise our rights so "use" the open space of a Square which is now the subject a formal Off Street Parking Places Order with designated parking spaces and which has defined routes for such vehicles, and also, what rights did the Council have to convert the open space to a car park which clearly negates the rights of all other persons entitled thereto?
Finally, one of the houses that has the same rights granted as others in the Square, is Albert Cottage,a singular detached property (included in the original overall development in the 1850's) which overlooks the Square. It has never been, and cannot be, accessed from the Square but only from a road a quarter of a mile distant. This property has the same such rights of "use and enjoyment" as those in the Square. Would you be so kind as to explain how in this instance "use and enjoyment" of the open space of the Square equates only to a "right to pass and repass", which does not apply in this case?
Sorry to trouble you again but it is these issues on which I and the residents would appreciate your further informal opinions. Yours, Paul Gooding
Hi there.In your initial post you quoted only a right to pass and repass as set out in the conveyances of the original properties. Are you now saying that there is an express right to 'use and enjoyment'? Can you quote the relevant bit of the Property Register/Conveyance?If there is no such express right then it is a question of whether or not prescriptive rights could have arisen to do the things you are wanting to do. To establish a prescriptive easement you have to show that the easement was used 'as of right' for 21 years or more, without permission.Also relevant is the fact that where use is for the benefit of land which is leasehold the right ultimately accrues to the landlord. If the properties were sold off after any prescriptive rights were accrued but not included in the Conveyances then it is possible that they were extinguished at that point.If there is an express easement granted in the Conveyances for access, which your first post seems to say there is, then prescription (for this purpose) is not applicable since it is not an easement used without permission. The necessity of the access is also not relevant since access appears to have been expressly granted.So, in other words, no I don't agree with the contention that what the documents say is 'superfluous'. Indeed I think it may be the only relevant indication of rights. If there is an express easement for 'the right to use' the square then this could be a bar to the Council making it a parking zone, but only in so far as them doing that makes it impossible for you to 'use' it. This could become very complicated legally. It is a question of interpretation of the right to 'use' it and whether this can include a right to park on it. I would argue that it does. The question then would be whether the right had been extinguished in the 1970s. Arguably all the tenants have conceded that it has by paying the parking charges up to this point.I would recommend getting a solicitor involved formally and writing to the Council. It might be that, under pressure, they will back down.
Hi Chris - thanks for your further advice - I'm not a computer erxpert but am endeavouring to attach to this message the letter that I received from Ms Dixon of Cornwall Council dated 2nd February last. If I've been successful, you will observe that the letter sets out what the Council claim is the "key wording within the Council's title". You will note that this states that there are 'exceptions and reservations' in the Council's title in favour of the owners, etc., etc., of those numbered properties plus Albert Cottage (as I mentioned in my previous mail) which apply "at all times hereafter by day or night and for all purposes connected with the use and enjoyment of the said respective premises with or without horses carts and carriages of whatever description, etc." Hence I maintain that there clearly is "the right to use". The terminology used in these stipulations are probably very similar to those laid down in the original lease of 1863 and the three occasions that the land has changed hands the since. If you could just come back one more time on the foregoing I will talk to the other owners about approaching a Solicitor. Can you just advise what youyr opinion of my title of No 10 that I mention previous. Also the reference to rights with a"horse & cart,etc" - as the initial lease etc long preceded motororised vehicles could it not be assumed that the former rights of one would as thye successor mode of transport, pass naturally to tyhe other. Thanks again. XXXXX
P.S.I agree that after this the owners ought to consult a Solicitor.
I am very sorry to say it, but I think I agree with the Council. The right 'reserved' to you is just to 'pass and repass'. The reference to 'for all purposes connected with the use and enjoyment' is to clarify that it doesn't matter what you are coming to or going from the property to do. This is archaic but quite normal language and I am afraid I don't think that it is giving you a right to use the land for anything other than access.
Solicitor with 10 years experience in Commercial, Property and Consumer Legal Isssues
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