Private Road query - issue with neighbouring property

Discussion in 'OT (OFF Topic) Forums' started by A-AvantGarde, Jul 26, 2017.

  1. A-AvantGarde

    A-AvantGarde MB Enthusiast

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    Any property law experts (or pointers to anyone that is knowledgeable in this area)?

    The road that we live in a private road (not maintained by the council). A neighbouring property has just applied to the council to relocate their vehicular access from the main road and into our road. This would require access over our private road and for a dropped kerb on a pavement owned by our development.

    Background
    We live in a new(ish) cul-de-sac of circa 12 houses. They were built about 9 years ago in the garden of an original house (that was initially acquired by the developers for the development).

    We have a Residents Management Company (RMC) that own our Private road, pavement and bollard lighting. There are also some small landscaped areas that we are responsible for.

    The RMC was managed by a sister company of the developers for a few years and then became inactive (they didn’t charge us for the last 5 years or so).

    We are now taking over control of the RMC and need a minimum of two directors (we currently have 5 residents interested).

    Issues:

    We know that this is a Private Road, the local council have confirmed that this and therefore not maintained by the County Council. We have a conveyance plan which clearly shows the areas owned by the RMC. The original planning application for the entire development had 22 spaces (which includes a few garages) for the 12 new houses and 4 spaces for the original house. The private road is used to access the orginal house and the 12 new houses.

    We have 3 key issues, mainly revolving around parking! – as always a perennial issue :mad:

    However these parking issues are resultant from a number of issues:

    1. Some residents have 4 and even 6 cars! As a result a couple of houses had subsequently had dropped kerbs installed (without approval from the management company – namely because it was dormant at the time) and converted some of their landscaped area or garden to parking spaces. Should we get them to get retrospective permission from the RMC? As it’s a private road should they also put in an application with the council (even though it’s a private road) – Just thinking ahead to try help my neighbours in-case they encounter any issues if / when they want to sell in the future.

    2. The front driveway for the house that had the land on which our houses have been built on on showed as having 4 parking spaces and 2 visitor spaces for our development.

    However, when the developer sold the original house following the completion of the development, the new owner of this property then constructed a wall and installed electric gates which now encloses all 6 of these parking spaces. At the time we tried to find out from the developer whether this was permissible given that we understood that there were no general permitted development rights left on this development. We were unable to find any submitted planning application to construct the wall and install the gates? Speaking with other neighbours it was claimed that the developer ‘sold’ these visitor spaces to the new owner. We kept hitting dead ends and nobody at the developers seemed interested or inclined to pick up this issue.

    We checked with the Land Registry and they state that there doesn’t appear to be a title registered for the private road / land owned by the RMC. They have said we can submit a SIM request to check additional records – is this worth doing? They did state that the marked up conveyance plan would be enough to show our boundary and areas of responsibility.

    Assuming these two visitor spaces were ours (i.e. the RMC) is there a risk that the owner of this property could claim adverse possession for these additional two spaces by having the spaces enclosed with this wall? I think they need to have 12 clear years?

    Unfortunately the conveyance plan (which clearly shows the areas owned by the RMC) which was supplied to us by the developer doesn’t show these two visitor spaces. Is it worth getting a copy of the title register for this original house (to see if it shows these visitor spaces not being part of their boundary?)

    3. Now the main issue – the house adjacent to the other side of our private road has now submitted a new planning application for new access to be created to their property from our road. Incidentally, the owner of this house has just extended their property considerably and in their original planning application clearly stated no change to vehicular access.

    In their new planning application for the change in vehicular access they state “At the moment access to our property is on XXXXX Road (AXXX), which is very busy and we have had a great deal of difficulty coming in and out of the driveway safely. We would like the access to move to XXXX Close which is on the left hand side of our house and is a much more quiet road. The property on the other side of XXXX Close has already done this so there is a precedent already set."

    My understanding is that ultimately, the planning consent is not permission to create the access on to a private/public road. They still need permission/licence from the road/land owner, so the RMC in our case? At this stage we’ve not been approached for this permission to be sought. I would have thought that they should have found this out themselves and approached us prior to submitting the planning application.

    Assuming they get planning permission, I assume that they could simply start to create their access (despite not owning the land nor having any form of right of access. We just want to understand the correct way of doing this and how to stop them in the event that the RMC haven't agreed the correct way forward (including the legalities regarding access over the road etc.)

    Many thanks in advance!
     
  2. markjay

    markjay MB Master

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    Not an expert in this area, but I believe that you are correct in saying that Planning Permission has effectively no bearing on the legal aspect.

    I know from experience that you can apply for Planning Permission for property you do not actually own yet (we did, and then based our purchase decision on the council's response). So you can apply (and often get) Planning Permission for almost anything, but this in itself does not mean that you can legally go ahead and carry it out.

    I also know from experience that having Planning Permission means nothing as you still need to get Landlord's consent etc (in residential buildings) or you are in breach of your Lease. I suppose in your case they will need to obtain consent from the land owner.

    And I also know from experience that you can obtain Landlord consent irrespective of Planning Permission.

    So I think that the only relevance of the Planning Permission here is that if you manage to oppose it and they are not granted it, then they are unlikely to proceed - and in the event that they do attempt to proceed without Planning Permission, you could alert the Council who would almost certainly stop them.
     
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  3. renault12ts

    renault12ts MB Club Veteran

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    It's a private road. The only people who can allow this new entrance are the residents of the private road. They absolutely cannot do what they propose without permission.

    Where I grew up and two of my brothers and other family members live it is a private road.

    In the past someone thought they could develope a barn in their garden as a separate residence...more than 30 years later it is still lying derelict because permission from the shareholders (each house has a share in the private non profit making company) is denied.

    Currently someone wants to put a new access in to their property so they can develope an adjacent site...but they don't own the grass verge outside their house and therefore cannot proceed because permission has been denied.

    Your neighbours can cite all the precedent they like but it's nothing to do with precedence, it's to do with who owns the land...and they don't..
     
    Last edited: Jul 26, 2017
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  4. reflexboy

    reflexboy MB Enthusiast

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    I'm no expert by any means, but just thinking aloud-The RMC owns the private road and uses the road to access their respective properties, and I presume the original house (prior to the new houses being built) have a legal right of access ongoing, however, one other thing I thought of: Would the home owner proposing this new dropped kerb/cross-over not be trespassing on private land unless a right of access is agreed/granted?
     
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  5. renault12ts

    renault12ts MB Club Veteran

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    Indeed, they would need a right of way.
     
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  6. Druk

    Druk MB Enthusiast

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    Maybe the applicants are not aware the road they are asking permission to use is privately owned. Has anyone appraised them of this?
     
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  7. brucemillar

    brucemillar MB Enthusiast

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    This....

    My neighbour sold their property with a double garage, accessed via a 'private road'. The buyers did not apply for access, mistakenly believing that it was their 'right of way/access' and were that challenged (it was) they would be granted a 'prescriptive right of way/access'.


    Seven years later there is a derelict double garage in my neighbours garden that they cannot access with any vehicles as it is 'landlocked' at the end of the 'private road'. They went to court and lost, appealed twice, and lost, with the last decision being granted as 'final with no appeal'.

    The property has been massively devalued, leaving them in negative equity.

    They committed the cardinal sin at the time they discovered they had no 'right of access'. They threatened the landowner with the courts in the mistaken belief that they would most certainly win. This infuriated the landowner.

    What they should have done (apart from checking before purchasing) was approach the landowner with a nice bottle of wine and a box of chocolates sat down and discussed how much they would be happy to pay him per-annum to have access signed over.

    Moral: Never assume when you are dealing with somebody else's property/land.
     
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  8. OP
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    A-AvantGarde

    A-AvantGarde MB Enthusiast

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    Thanks everyone - this all helps massively.

    A few weeks ago they told one of our neighbours (prior to submitting their application) that they had full permission to do this. They then pointed out that it's a private road and then we didn't here anything until finding out that they had submitted a planning application this week!

    In principle I don't believe that the directors of the RMC are against this application (well one of the 5 directors is against) but we want to make sure if we do agree it's done correctly & legally.

    Although we wouldn't be selling land to allow them to have this access, I assume that or RMC could charge both an initial and an ongoing fee for granting the access across our road? I don't suppose there is any guidance for this cost - I assume we are the ones in the bargaining position as the owner of the road?

    So the last hurdle is that where they intend to drop the kerb is on a pavement where one of our neighbours (also one of the RMC directors) parks their kids cars (this is another contentious issue). You can see how this situation could get quite messy!

    So the creation of the new access from our road means that one of our neighbours loses 2 to 3 'parking spaces' although these spaces are created by parking completely on-top of a pavement (again part of the private road).

    Finally, in terms of legalities if we were to grant access, do we need to create an easement or licence or something? I can't recall the proper name but I'm sure we would need to document something formally which grants access over the shared drive with their ongoing contribution to the upkeep etc.
     
  9. Druk

    Druk MB Enthusiast

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    Is it not maybe the case that although the RMC has decision rights over daily use of the road (by the home owners) the end decision as to whether to grant access to an 'outsider' would have to have a unanimous vote by all those affected? If a decision by the RMC went against the interests of one homeowner the resultant falling out could be disastrous for neighbourly relations.

    Have you considered that the resultant of granting access may be that a double garage with pitched roof goes up in their garden followed by a large paved area where they park their twin axle caravan (for eleven months of the year)?


    A caravan :eek:.....heaven forbid ;)






    .
     
    Last edited: Jul 26, 2017
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  10. Satch

    Satch MB Enthusiast

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    First thing you need to do is make sure that the RMC is fully and properly operational.

    The "Directors" of such a company serve at the sole pleasure of the the shareholders and should be nothing more than an administrative requirement of the Companies Act, although I have seen a few sad types who seem to think they have the power of life and death.

    Since this is something that will impact all of the residents, all should vote on the proposal once you have full and proper legal advice. It WILL have future impacts on your property in some way.

    No doubt the person seeking access to your road will be required not merely to pay for initial works but agree to contribute to all subsequent upkeep and maintainence of the road as a whole. You might care to consider what your enforcement powers are if they or future owners dont continue stump up so another legal hurdle.

    Might also care to think exactly why such access is required and what it could lead to. It would for example be somewhat depressing to find that you had obligingly created an access road to otherwise boundary locked land which magically then wants to become available for sale and development. So more restrictions and conditions required there.

    That stunt is common around my part of the world and it leads to all manner of Restrictive Covenants and general aggrevation.

    Net result is that the usual response to such requests nowdays is simple: No.

    It's just too much hassle in return for the benefit of somebody else
     
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  11. OP
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    A-AvantGarde

    A-AvantGarde MB Enthusiast

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    Some excellent advice here so far - keep it coming!

    Yes, we do intend to offer this out to vote. One vote per household. To complicate it further two of the properties are rented (one of which is owned by someone who resides overseas). We have got contact details for both owners.

    One of the other plans 'most' of the residents have agreed in principle to is to gate our road too. The positioning of the gates doesn't impact this particular planning application as it's further down the road and exclusively for the 12 new homes, not the original house or this one that has just been re-developed.

    Again for that we've sought all of the approvals we need so far, consulted with the council, emergency services and neighbours. The majority of householders (except the rented ones as we haven't heard back from the owners) have all bought in. One of the thoughts a few of us had was that the people wanting the new access could pay their 'initial fee' for our approval for them to have access to our shared drive leading to the road and then charge a subsequent annual charge for access over the shared drive.

    The thinking is that the 'initial fee' may then reduce the amount needed from each of our 12 homes toward funding the initial cost of the gates.

    On the RMC front, I do sometimes wonder why I bothered to get involved!

    I seem to have to pull everything together. I just know that if we don't have a fully functioning management company it's bound to bite us somewhere where it really hurts in the end!
     
  12. Headhurts

    Headhurts MB Enthusiast

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    There is some good advice on here and the law around this area is a minefield.

    I am a director of an RMC and we have had similar issues.

    Preim are our managing agents so we generally get good advice from them as they have been in this business a while.

    There are also many covenants in our deeds and our memorandum and articles forbid us selling off land.

    I personally would be against any change of use.

    Our residents (home owners not renters) have one share each and are therefore equal owners, any changes you as a director allow impacts on each resident.

    We have had various planning issues, and it is true that planning authorities do not take into account whether a road is private and indeed any covenants.

    We had one resident build a wall up to his boundary but we had to get involved when it was discovered the footings encroached onto RMC land, rather than get him to remove the wall we allowed it but it was made clear that the footings are still on RMC land and this could cause problems once he comes to sell his home.

    I'm not sure whether you have any covenants but I find it strange that owners will sign these documents then break the rules, of course to enforce these requires civil legal action which is expensive with no guarantee of success.

    I wish you well with your endeavours and if I can help please PM me.

    Robin


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  13. OP
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    A-AvantGarde

    A-AvantGarde MB Enthusiast

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    Thanks Headhurts - hope you didn't pick that username from your involvement in the RMC :)

    I may well PM you Robin, many thanks for the offer of help. I'd be keen to hear your thoughts on Preim and whether you feel they are good value for money. Most of our directors are keen to do this DIY, which probably means I'd inherit much of the hassle :(

    I've had my fingers burnt with outsourced management before but that was in a much larger block of flats. This may be more straightforward!

     
  14. Headhurts

    Headhurts MB Enthusiast

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    I would urge you to use a management company like Preim who have lots of experience.

    You do need to keep on their case at times though.

    It really is a minefield with so many laws and procedures not forgetting bank accounts that may contain a heap of money belonging to the resident share holders.

    Our site is old with lots of trees mostly protected by TPO's, the infrastructure is quite old so fairly expensive to look after.

    If a management company goes bust it makes your homes lose value and become difficult to sell.

    A company like Preim can guide you through this but of course they do want their cut.

    If you go it alone then I hope it works out well for you.


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  15. Piff

    Piff MB Enthusiast

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    I developed a site for 4 houses, sharing a private drive. I sliced up the drive 4 ways down its length, giving each house a quarter. This way neither of the properties could grant access to a third party without the other 3 owners consent.
    Before selling the houses a neighbour who backed onto the drive (and whose house fronted directly onto the main street and had no parking of their own) requested use of the private drive so he could create his own parking space in his rear garden.
    He had a seriously disabled son and this parking space would have been a significant benefit to him and would increase the value of his house.
    We agreed to grant him a vehicular access right on the condition that he paid the legal costs for himself and us. He did not own any of the drive but was required to contribute a one fifth share towards any future maintenance.

    I live on a private drive. It is a single track un-made road. Ours was the first house built in the 1930's with additional houses added in subsequent years as the local builder sold off individual plots. We own the patch in front of our house as each of our neighbours (approx 12) own the patch in front of theirs. We each allow, in the covenants, our neighbours to use our bit of drive & they allow us to use theirs.
    Unfortunately it has highway access at each end and over time it has been allowed to be used as a public footpath and a short cut for other road users. This is now impossible to stop.
    About 18 months ago the local electric company were laying new ducts in the parallel highway and although they were only occupying half the highway they had the whole road blocked off. I was working at home at the time and started to notice frequent use of the private drive as a short cut for the contractors including use by a big (6T?) dumper. Bearing in mind they had no right to use the private drive and the individual owners were responsible for the maintenance of their own patch I went out and stopped the dumper (he tried to run me down initially which wound me up). He initially claimed that he had to use our drive as a short cut as the road was blocked by another of their vehicles. Using some choice language I would not let him through and I made him back up (approx 100 yds). I also demanded a visit from his supervisor to apologise. From that my immediate neighbour got some potholes repaired for free.
     
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  16. Pontoneer

    Pontoneer Hardcore MB Enthusiast

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    I'm no legal expert , but regarding the wall/gates/parking around the original house , and whether you need to approach the developer or Land Registry , is the Freedom of Information Act not your friend ?

    The usual thing is to submit a subject access request along with the £10 admin fee ...
     
  17. brucemillar

    brucemillar MB Enthusiast

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    A point I forgot but it is relevant.

    A prescriptive right of way/access, can be claimed if the claimant can show that they have always had "unchallenged" use of the land.

    Keep any correspondence, you have had and a diary of any calls, conversations that you have had with your neighbour.

    In the case above. The landowner demonstrated in court that the previous owners of the house had (a) been challenged regularly over their use of the road (b) had paid him, their use of it.

    (b) was interesting as the landowner produced Christmas cards and the like, that had message like "thanks for letting xx park his car at the garage"

    So gifts and cards can count as payment, certainly proof that it was known that land was not a straightforward "right of way"

    You do not want your chap (if it comes to that) arguing "I always used it unchallenged" or, "I had permission from resident xx"
     
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  18. Headhurts

    Headhurts MB Enthusiast

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    Bruce is correct we had to deal with this, a prescriptive right is gained over a period of time which is not specified but generally is 15 to 20 years but down to a judge really.

    Prescriptive rights are gained over a long time but are not transferable until gained.

    The above is my recollection from seeing a solicitor about this several years ago.

    Specialist solicitors are the way to go as law is never so simple as we think.

    One of the advantages with employing a managing agent is that once the directors have made the decision they will send the letter.

    It can be awkward to have to tell your neighbour this sort of thing.

    Any arguments from this then go through your managing agents.

    Robin


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  19. Noelmc

    Noelmc Member

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    I live in a private road with a RMC. The RMC owns the road, the 7 house owners are directors of the RMC. Regarding voting, a look at your articles of association, and the memorandum of agreement of the RMC should tell you how votes etc are dealt with. We manage the RMC ourselves with each house paying a monthly charge to cover gardening, street lighting.
     
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