Access Rights

[newhome]

When I purchased my plot in 2009 there was an access right over the shared access area (shared with next door) of the plot in favour of the original landowner (a company). At the time of purchase we were concerned about the use of the access point and the conditions of entry so made sure to fully understand the conditions. There is a long legal document "Deed of Conditions" that details all the conditions but it's not something that is an easy read without legal training . That said I have a letter from the vendor's solicitor stating that except in an emergency the original owner has to provide 48 hours notice and a letter from my own conveyancing solicitor saying the same. The vendor also stated that the original owner had only used the right of access once in 2 years. That was ok with us so we went ahead with the purchase. Recently however the original owner has sent along multiple contractors to use the access point without any notice, without any ID, logos on vehicles or clothing, and mostly at night. It came to a head a few weeks ago where we had multiple vehicles parked outside on the road overnight and over a dozen men wandering onto the shared driveway making crazy amounts of noise night after night. Both my neighbour and I reported this to the 24 hour access line that the company runs, and they said that they had no works scheduled in that area so weren't sure who was there, but someone would get back to us. Despite many chasers and attempts to open dialogue we got nothing back from them and they continued to access the property so my neighbour padlocked the access gate. The company's first course of action was then to send a letter from their legal council. I replied back and said that we are merely asking for the conditions of access to be respected and I have just received another letter stating that they don't have to give any notice at all, and that the 48 hours notice is for a specific purpose which does not apply at this location. Had we known this I am sure we would have changed our mind about the purchase so I feel like we were misadvised by 2 solicitors. I know that my own solicitor retired about 4 years ago but can anyone advise what I should do now, and whether I have any hope of pursuing a claim please. Obviously I am concerned about the cost of the action and what type of solicitor I need to engage. My neighbour is also equally concerned about the access so we will instruct a solicitor jointly I think, although my neighbour doesn't appear to have anything in writing from their solicitor stating the access conditions so it may be harder for them to pursue anything. 

 

To note - I haven't named the company in case it identifies me or prejudices any action but they are a UK wide company. I'm in Scotland but I imagine the principles may be the same as in the rest of the UK. 

Edited March 3, 2018 by newhome

[ProDave]

A plan of your plot and the access they are using might help make sense of it.

[lizzie]

Have you found the clause in your documents specifying the noitce period?  Something like that is usually very clear. If you have correspondence from your original lawyers setting this out then it should be easy to find.  

 

Do you have legal expenses as part of your home insurance?  If so might be worth a call to see if they will take up your case in defending the access notice point, dont think they would get involved in negligence cases in relation to your previous lawyers though.

 

Litigation of any sort is very costly. If it is a negligence claim against your former solicitor then there should still be professional indemnity insurance of some form in place, if your former solicitor was an employee or partner then the continuing firm would be the responsible party  or otherwise either what is termed ‘run off cover’ if they just simply closed down or via the insurance of any successor practice. A call to the helpline of the Scottish Law Society to explain your situation may prove helpful in pointing you in the right direction to. begin your action.

 

 

[newhome]

16 minutes ago, ProDave said:

A plan of your plot and the access they are using might help make sense of it.

 

The plot is accessed by a gate at the front of the plot. The access area in the form of a driveway shared with next door is in orange. This was the eventual access decided upon by the council after 2 challenges from the community council over access to the adjoining plot. I have parking for at least half a dozen vehicles in the white area which is solely owned by me. At the back of the orange area there is a gate, and this is where they have access plus a right over the orange area in order to access the gate. 

 

 

 

 

 

[ProDave]

So you can enter via the gate, and drive STRAIGHT ON into the white bit?  That is how I would arrange it, so you have easy and clear access to your own land.

 

I might even go as far as fencing off the orange bit, effectively not using it, just leaving it as their access.

 

Then as long as they don't block your access to the white bit I don't see a problem.

[newhome]

45 minutes ago, lizzie said:

Have you found the clause in your documents specifying the notice period?  Something like that is usually very clear. If you have correspondence from your original lawyers setting this out then it should be easy to find.  

 

Yes I have the Land Registry document and I can see a 48 hour notice period in the Burdens Section that says that 48 hours notice is required but the company say that there is a general right of access with no notice required and an additional right of access where notice is required but that these conditions don't apply to any work the company carries out at this location . The document goes on forever and the Burdens section alone is 18 pages long. It's clear however that 2 solicitors were not clear that the 'general access' didn't have the 48 hour notice period attached to it given the letters I have. 

 

45 minutes ago, lizzie said:

Do you have legal expenses as part of your home insurance?  If so might be worth a call to see if they will take up your case in defending the access notice point, dont think they would get involved in negligence cases in relation to your previous lawyers though.

 

Litigation of any sort is very costly. If it is a negligence claim against your former solicitor then there should still be professional indemnity insurance of some form in place, if your former solicitor was an employee or partner then the continuing firm would be the responsible party  or otherwise either what is termed ‘run off cover’ if they just simply closed down or via the insurance of any successor practice. A call to the helpline of the Scottish Law Society to explain your situation may prove helpful in pointing you in the right direction to. begin your action.

 

I imagine the first thing I need to do is clarify what the access conditions are as it's by no means clear from the very long document. And if the company is right 2 solicitors have got it wrong already, so I'm in no position to confirm the access requirement myself. I just looked at my house insurance - no I don't have legal cover. It's a bit of a special policy as I didn't have a completion certificate from the council and the self builder insurance ran out so I managed to get a 'building still in progress' type of cover. Now that I finally have the completion certificate I will alter it to a 'normal' policy at renewal as it's much more expensive than a standard policy. 

 

My former solicitor was the last remaining partner in the practice I believe as the practice closed when he retired. 

 

Thank you re the pointer to the Scottish Law Society - I will give them a call. 

 

 

 

Edited March 3, 2018 by newhome

[newhome]

9 minutes ago, ProDave said:

So you can enter via the gate, and drive STRAIGHT ON into the white bit?  That is how I would arrange it, so you have easy and clear access to your own land.

 

I might even go as far as fencing off the orange bit, effectively not using it, just leaving it as their access.

 

Then as long as they don't block your access to the white bit I don't see a problem.

 

Thanks. Unfortunately there is now a garage at the side of the wider shared area at the bottom so I have to drive down the orange bit to access it. The start of the garage is more or less where the arrow is on the 25.8 measurement. And I have to park outside the garage (too much junk to get the car inside) as I have to plug the car in there. 

 

It's not the access I'm annoyed about really, it's the 'who the hell is out there making a racket' in the middle of the night, and the company (who run a 24 hour access line) tell me they've no idea who is there or why when I call them. I get on great with next door and there have never been any issues with access etc with them. And the contractors have bloody parked on the white bit on occasion which infuriates me. 

 

[Ferdinand]

@newhome

 

I wonder if it might be a good idea if possible to let this dog lie sleeping until you have a normal insurance policy with a legal cover option?

 

Sod's Law says it isn't possible.

 

Are there possible options through contacting the local council re: Nuisance etc. ?

 

F

Edited March 3, 2018 by Ferdinand

[lizzie]

Do you know what they are doing? Is it potential development land. Not that it alters anything just curious as to why the sudden activity and heavy hand by the company

[newhome]

1 minute ago, Ferdinand said:

@newhome

 

I wonder if it might be a good idea if possible to let this dog lie sleeping until you have a normal insurance policy with a legal cover option?

 

 

Doubt that's possible unfortunately as the letters from the company are clearly dated February 2018 so any new insurance will say they are not liable. I very much doubt the local council will be remotely interested. 

 

[PeterW]

Ok so there is a difference between access and parking ...!!

 

Right of access allows them to pass over the land, not to park or work on it. Doing that breaches the covenant or agreement so it becomes null in law. 

 

Are they accessing some sort of storage compound ..?

[newhome]

4 minutes ago, PeterW said:

Right of access allows them to pass over the land, not to park or work on it. Doing that breaches the covenant or agreement so it becomes null in law. 

 

Are they accessing some sort of storage compound ..?

 

It says they have vehicular access too unfortunately. The gate is a railway track access gate, and they can apparently park outside the track access gate. That doesn't restrict my access at all, but it completely restricts the access to my neighbours' property as that white strip next to it is the access drive to their house. So they tend to park on my personal parking area instead . 

[newhome]

For info here are the relevant bits from the solicitors' letters. The one from the vendor's solicitor has interesting wording now that I read it again. It appears to say that their client has advised re the access, ie the vendor, rather than it being their own assessment of the legal position, and despite them enclosing the Land Certificate. 

 

The wording from my own solicitor is less clear. He seems to imply that he has passed on what the vendor's solicitor has said re the access so not sure whether he has a get out clause on that basis. Surely 2 solicitors should have read the document however and provided proper legal advice?

 

 

 

 

I had no reason to suspect at the time that neither solicitor had actually read the document and assessed the formal legal position in relation to the access. 

Edited March 3, 2018 by newhome

[dpmiller]

So they're parking upon your private land at times?

[Declan52]

Could you go down the route of noise at night regulations with your local council. Unless what they are doing is an emergency repair to a pipe/cable then why is it not being done during the day. 

[newhome]

37 minutes ago, dpmiller said:

So they're parking upon your private land at times?

 

Yes they are. Their contractors even told me that they were told to use this access ‘as a meeting point’ which concerns me too. I will be speaking to the company but am very annoyed that they sent a threatening legal letter instead of attempting to engage with me despite the case report they opened stating the below. They went straight to their lawyers. The latest letter arrived last Tuesday hence me asking for advice here. 

"Your service request has been assigned to our Ops Planning team to investigate further. They will report back shortly with their findings and your local contact and communities team will be in contact to confirm the next steps in due course."

 

 

[newhome]

24 minutes ago, Declan52 said:

Could you go down the route of noise at night regulations with your local council. Unless what they are doing is an emergency repair to a pipe/cable then why is it not being done during the day. 

 

I may do that, and there is even a section in the Land Certificate that notes their obligations re inconvenience and disturbance but it’s in the same section as the 48 hours notice that they claim doesn’t apply to general access so I guess that doesn’t apply to this either. How odd that all the things noted re consideration for the property owners apparently never apply here. 

 

They work mostly at night for safety as no trains are running and they state that in the letter. I don’t know what they are actually doing as they disappear down the track and are not doing whatever it is in this location. 

 

Some companies are very good at handling disputes. This one however seems to go straight to legal when there was no need at all. 

[ProDave]

So this is Railtrack, or their appointed contractor accessing a railway line for maintenance work or similar. So of course they will be doing it at night when the trains are not running,. quite probably with a load of spotlights rigged up.

 

If so hopefully this will be a relatively short lived thing. (unless this bit of track is being upgraded to form part of HS2 )

 

Have a POLITE word with the contractors and try to agree a place they can park that is not in the way of either house.

[newhome]

11 minutes ago, ProDave said:

If so hopefully this will be a relatively short lived thing. (unless this bit of track is being upgraded to form part of HS2 )

 

 

 

 

Don’t think HS2 comes anywhere near here TBH. The Edinburgh route goes up through Manchester and the east leg seems to end at Newcastle. They’ll run out of money long before then anyway! 

 

11 minutes ago, ProDave said:

Have a POLITE word with the contractors and try to agree a place they can park that is not in the way of either house.

 

There is a place they can park in the corner of the orange area which anyone with half a brain cell could determine. I don’t believe they have been given any instructions as to the access terms however which is a failing of their company hence they think they can park on my private parking. I wanted to do it via their office as going out there on my own at 2am doesn’t appeal much (although I have done that before and nothing improved because next time different people arrive). 

[ProDave]

Perhaps some LARGE notices, "Do NOT Park here"   and "Please park HERE"  might be all you need.

[Stones]

 

34 minutes ago, ProDave said:

Perhaps some LARGE notices, "Do NOT Park here"   and "Please park HERE"  might be all you need.

 

Pplus a few strategically placed large boulders or plants so they can't get onto your land?

[newhome]

41 minutes ago, ProDave said:

Perhaps some LARGE notices, "Do NOT Park here"   and "Please park HERE"  might be all you need.

 

Keep the bloody noise down is more tempting to be honest . About a dozen of them standing under my bedroom window in the middle of the night yelling for about an hour was the night I lost it, got dressed and went outside, closely followed by my neighbours who despite being further up the road had also been woken. This was the 5th night of it so we were raging by then. My neighbours the other side who are nothing to do with the access said later that they had been woken night after night too. It's the disturbance more than the parking in truth (unless they park a truck right in the middle of my parking area essentially blocking most of it which they've done once before) but once you've been annoyed by one thing you tend to be annoyed by all of it. But I should be able to control the parking so will tackle it from that perspective as one hopes that if they are briefed about the parking they may also be briefed about general courtesy too. 

 

15 minutes ago, Stones said:

Plus a few strategically placed large boulders or plants so they can't get onto your land?

 

I've actually ordered a load of large plant pots from Amazon Prime but we haven't had any post here for a week due to the snow, but I'm hoping that they'll arrive this week. 

[MikeSharp01]

I don't think there is any limitation on the retirement of a solicitor as the liabilities then fall back to their professional body / insurance as it is a PI (like) issue IIRC so you could pursue them if you wished.

[newhome]

6 minutes ago, MikeSharp01 said:

I don't think there is any limitation on the retirement of a solicitor as the liabilities then fall back to their professional body / insurance as it is a PI (like) issue IIRC so you could pursue them if you wished.

 

Thanks. I am pretty peeved if he got it wrong to be honest, especially as this was one of the key concerns we had about the plot so made sure to ask for the terms to be established, and the 48 hour notice was acceptable to us. Had he said 'they can come whenever they like day or night' I do think it may have altered our decision to proceed. I went for an established central Edinburgh solicitor rather than a cheaper one as I thought I would get a better service and he was relatively expensive compared to others. Seems sometimes you do not get what you pay for 

 

 

[asklair]

From past experience Scot Rail have acknowledge that they have not done well in managing noise and disturbance when working near to homes. They may have a right through your property but I know a large corporation does not want bad publicity, try their PR department.