Access Rights

[AliG]

I would keep it locked and send that correspondence to their lawyers. If you keep it locked they are going to have to get a court order to enforce their access. I think you might find them a lot more willing to engage with the gate closed. I don't think you take much risk in doing this, although I am not a lawyer.

 

I would also take it to another lawyer to clarify their reading of the access rights. It would probably entail paying a few hours fees.
 

Even if they are not bound by the deeds they may be bound by the letter that they sent to your solicitor as that seems to put their intentions in writing.

 

Your lawyer should have clarified what the actual deeds said, not what the other side said, however, I would think having put it in writing they are bound by it. Sadly I find this kind of thing typical of the poor service that many expensive professionals provide. If you have been badly advised you would have to claim against them which is going to be a pain.

 

Even if they do have a right of access, access is quite clearly traversing the land, not parking there. That is not access.

 

Edited March 4, 2018 by AliG

[newhome]

2 minutes ago, asklair said:

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.

 

It's not the train operator who is responsible though (ie ScotRail etc), it's Network Rail (I've named them now ) so they'll say it's nothing to do with them, and actually ScotRail doesn't run trains down here, there are only Virgin and Cross Country trains on this line and it's not a majorly busy line relatively.  

 

I'm probably just feeling extra irritated by the letter they sent as I've been stuck here for almost a week due to the snow so am going stir crazy. It looks like it's finally starting to melt though so I might actually be able to get back to civilisation soon . 

 

The local FB site has been a joy this week with people accusing their neighbours of buying all the milk, and being greedy. One lady even wrote that iodine in milk exacerbates acne so 'think on oh greedy ones' . But in better news apparently one lane of the McDonalds drive thru is now open . Priorities ...... 

 

[asklair]

2 minutes ago, newhome said:

they'll say it's nothing to do with them

I always try and  do an audit trail, and then try and find out all the companies procedures. Those contractors are being paid who pays them and keep going, if they have no id or work permits how do you know they have a right to be there. I have add major hassle with film crews breaking the law, no one would listen, found out all the correct procedures,  laws and use Article 11  "Rights to protest and freedom of association" and how the Scottish Parliament encourages people to protest. Virtually overnight I was getting phone calls wanting to find a solution. Key points, I saturate all the parties with emails and always inform the police about my protests and make it into a "game" so my blood vessels do not explode. My rule is if I would not do it to other people, then I do not expect it done to me. I always remember @JSHarris phrase, "you are oiling the wheels" and I can assure you this unacceptable behavior is happening to other people, with you challenging them it will help others.

 

[Triassic]

Does the access rights extent to sub contractors? Probably not!

[Temp]

I suspect it does but how are you meant to distinguish a contractor with rights from Joe Blogs out to steal cable from the railway or break into your house? 

 

I think a visit to the police station might be in order to report the suspicious activity.  Tell them when you call the company to check the company says they don't know of  anyone working on the site. 

 

Perhaps ask if the police would like you to call them next time someone turns up in similar circumstances. Let the police check their ID. With luck the police will get fed up being called out and ask the company to notify you. However be careful what you wish for... would you like them to call you every time they need access at 3am? 

 

 

 

 

 

 

 

 

 

 

[newhome]

 

45 minutes ago, AliG said:

I would keep it locked and send that correspondence to their lawyers. If you keep it locked they are going to have to get a court order to enforce their access. I think you might find them a lot more willing to engage with the gate closed. I don't think you take much risk in doing this, although I am not a lawyer.

I would also take it to another lawyer to clarify their reading of the access rights. It would probably entail paying a few hours fees.
Even if they do have a right of access, access is quite clearly traversing the land, not parking there. That is not access.

 

 

The first letter was from their legal counsel and the latest letter is from a 'Project Interface Co-Ordinator' but most of the content is from their legal team as it states that in the letter and is clearly written by someone in the legal team. The letter says that their staff will simply remove the lock from the gate unless I remove it first. It also mentions 'vehicles' having access. The Deed of Conditions does mention that they have vehicular access but now that I look at the plan closely point 'A' that they mention as being the place where they can park is along my neighbour's single track driveway and there is no way they can park vehicles there without blocking them in completely . Big screw up by my neighbour's solicitor I think, but I don't see why I should have to allow them to park on my private area instead which is what tends to happen. I don't want to fall out with my neighbours either mind as they are great ...... 

 

I didn't actually put the lock on the gate (my neighbour did) and I don't have a key so couldn't remove it even if I wanted to. 

 

45 minutes ago, AliG said:

Even if they are not bound by the deeds they may be bound by the letter that they sent to your solicitor as that seems to put their intentions in writing.

 

Your lawyer should have clarified what the actual deeds said, not what the other side said, however, I would think having put it in writing they are bound by it. Sadly I find this kind of thing typical of the poor service that many expensive professionals provide. If you have been badly advised you would have to claim against them which is going to be a pain.

 

Sadly they (Network Rail) did not send that letter to my solicitor, the letter was sent by the vendor's solicitor (the plot changed hands twice after it was sold off when the rail network was privatised, then it was split into 2 and I bought one of the plots). I had expected that the advice received from my own solicitor would have been on the basis of him checking the deeds but now I am in this position I think he hasn't bothered. We specifically asked him to check this very point so I am pretty annoyed that he couldn't be bothered (or got it wrong). 

 

My neighbour's solicitor was even worse which is why 10 years after they moved in (they bought from the builder) they still don't have a completion certificate or temp habitation certificate which was only discovered when I received mine and the council told me that next door's house had not been signed off by them 

 

What a mess. 

 

 

 

[newhome]

8 minutes ago, Triassic said:

Does the access rights extent to sub contractors? Probably not!

 

Yes it does. That was my first thought but sadly it extends to their contractors too. Damn! 

 

[Triassic]

If they were parking only land I’d be insisting they remove their vehicles. 

 

Msybe you you and your neighbors need to work together. If they block him in keep ask them to move.

 

 

[newhome]

3 minutes ago, Temp said:

I suspect it does but how are you meant to distinguish a contractor with rights from Joe Blogs out to steal cable from the railway or break into your house? 

 

I think a visit to the police station might be in order to report the suspicious activity.  Tell them when you call the company to check the company says they don't know of  anyone working on the site. 

 

Perhaps ask if the police would like you to call them next time someone turns up in similar circumstances. Let the police check their ID. With luck the police will get fed up being called out and ask the company to notify you. However be careful what you wish for... would you like them to call you every time they need access at 3am? 

 

 

That's what I was trying to explain to them - how could I distinguish a Network Rail contractor with someone here up to no good, or trespassing on the line. It was one of the key concerns I wrote in my letter back to their lawyer and noted as a reason why some notice was required, but they have completely ignored that concern when they replied.  I was told by one of their team that I could call the 24 hour emergency track access line with any concerns but when they tell me they have no record of any work being carried out here so cannot tell me who is on my property what am I to do? 

 

I don't want them to call me, a simple email would do as a heads up and I would have thought that was easy enough to do? But they are adamant that "we cannot agree to give you advance notice due to the operational importance of the access point". 

 

[newhome]

1 minute ago, Triassic said:

If they were parking only land I’d be insisting they remove their vehicles. 

 

Msybe you you and your neighbors need to work together. If they block him in keep ask them to move.

 

 

 

I'm sure he would ask them to move but they don't park there because they know it blocks them in, they park in my parking area instead and it's down to me to tell them to move . Maybe a temp fence is the way forward. It would restrict my access but may get the message across. 

 

[Triassic]

Maybe a simple rope across your bit.

[AliG]

27 minutes ago, newhome said:

 

 

The first letter was from their legal counsel and the latest letter is from a 'Project Interface Co-Ordinator' but most of the content is from their legal team as it states that in the letter and is clearly written by someone in the legal team. The letter says that their staff will simply remove the lock from the gate unless I remove it first. It also mentions 'vehicles' having access. The Deed of Conditions does mention that they have vehicular access but now that I look at the plan closely point 'A' that they mention as being the place where they can park is along my neighbour's single track driveway and there is no way they can park vehicles there without blocking them in completely . Big screw up by my neighbour's solicitor I think, but I don't see why I should have to allow them to park on my private area instead which is what tends to happen. I don't want to fall out with my neighbours either mind as they are great ...... 

 

I didn't actually put the lock on the gate (my neighbour did) and I don't have a key so couldn't remove it even if I wanted to. 

 

 

Sadly they (Network Rail) did not send that letter to my solicitor, the letter was sent by the vendor's solicitor (the plot changed hands twice after it was sold off when the rail network was privatised, then it was split into 2 and I bought one of the plots). I had expected that the advice received from my own solicitor would have been on the basis of him checking the deeds but now I am in this position I think he hasn't bothered. We specifically asked him to check this very point so I am pretty annoyed that he couldn't be bothered (or got it wrong). 

 

My neighbour's solicitor was even worse which is why 10 years after they moved in (they bought from the builder) they still don't have a completion certificate or temp habitation certificate which was only discovered when I received mine and the council told me that next door's house had not been signed off by them 

 

What a mess. 

 

 

 

 

1. They cannot remove a lock from your gate even if they have a right of access. Without a court order enforcing their rights that is criminal damage. I cannot believe they even suggested that they would do that in writing. Their or their lawyer's opinion on their right of access is worthless unless they can prove it in court.

 

2. It would probably depend on the exact wording of the deeds, but I would repeat that a right of access, including vehicular access, usually means a right to traverse a piece of land, not to park on it.That is not the normal definition of access unless it is specifically stated in the deeds.

 

3. They certainly do not have a right to park on your land or block your or your neighbour's access to your property. It is hard luck on them if there is nowhere for them to park unless they have been given specific rights to do so in the deeds. You can ask that they park somewhere else and walk.

 

4. I assumed that the vendor was Railtrack. Your solicitor should never have relied on an assurance from the vendor's solicitor if the vendor was not the person with the right of access as that assurance is basically worthless.

 

5. I would expect that their right of access can be conferred on their subcontractor. However, as they have told you that they don't have anyone working there then you are well within your rights to deny them access as Railtrack have removed their rights by denying their existence.

 

Edited March 4, 2018 by AliG

[Temp]

8 minutes ago, newhome said:

I was told by one of their team that I could call the 24 hour emergency track access line with any concerns but when they tell me they have no record of any work being carried out here so cannot tell me who is on my property what am I to do? 

 

You would hope that if someone called the emergency number to report people on the railway (possibly stealing cable?) they would send someone to check. Especially if the caller wasn't able to see any van markings as it was too dark/late and the company had no record.

 

[Triassic]

If they said that to me I’d be suggesting the send British Transort Police to investigate.

[newhome]

3 minutes ago, Temp said:

 

You would hope that if someone called the emergency number to report people on the railway (possibly stealing cable?) they would send someone to check. Especially if the caller wasn't able to see any van markings as it was too dark/late and the company had no record.

 

 

Sadly not - they don't seem to give a stuff in truth. The vans don't have any markings generally, that's half the issue. They are white vans or contract hire vehicles that have logos to suit. The last one said SHB Vehicle Hire, and I asked at the time how I was supposed to distinguish a contractor from someone up to no good. 

[newhome]

40 minutes ago, AliG said:

 

1. They cannot remove a lock from your gate even if they have a right of access. Without a court order enforcing their rights that is criminal damage. I cannot believe they even suggested that they would do that in writing. Their or their lawyer's opinion on their right of access is worthless unless they can prove it in court.

 

2. It would probably depend on the exact wording of the deeds, but I would repeat that a right of access, including vehicular access, usually means a right to traverse a piece of land, not to park on it.That is not the normal definition of access unless it is specifically stated in the deeds.

 

3. They certainly do not have a right to park on your land or block your or your neighbour's access to your property. It is hard luck on them if there is nowhere for them to park unless they have been given specific rights to do so in the deeds. You can ask that they park somewhere else and walk.

 

4. I assumed that the vendor was Railtrack. Your solicitor should never have relied on an assurance from the vendor's solicitor if the vendor was not the person with the right of access as that assurance is basically worthless.

 

5. I would expect that their right of access can be conferred on their subcontractor. However, as they have told you that they don't have anyone working there then you are well within your rights to deny them access as Railtrack have removed their rights by denying their existence.

 

 

 

"Access cannot be obstructed and any obstructions must be removed and our staff will remove any padlocks and chains which impede their access". 

 

I've uploaded what I think is the wording they are noting from the deeds as it's the only thing I can see that mentions point A on the plan, and parking rights that they note in their letter. Point A isn't in blue though , it's on my neighbour's driveway. Confused.com - it needs a lawyer to look at it I think and make sense of it. Both of these scans are from the Deed of Conditions, so surely the plan must relate to the wording? 

 

Last time they came and the access line said that they couldn't say who they were I did send them packing, and my neighbour padlocked the gate, and then the legal letters started to arrive. 

 

I am annoyed with my solicitor mostly as anyone with legal training should surely be able to understand the deed of conditions? 

 

 

 

 

[AliG]

Unfortunately that seems pretty clear.

 

1. They have a right of access across the whole site edged in brown, not just the shared driveway.

 

2. They have a right to park at the blue letter A which indeed would block your neighbour's driveway.

 

3. They can also ask to park anywhere else on the entire piece of land which you would have to agree to "reasonably". So they can ask to park on your area and you could only object if it was "reasonable" to do so.

 

I don't see how a solicitor could have missed this, especially as pertaining to your neighbour's plot which it could obviously block.

 

There is certainly no 48 hours notice mentioned here. They still cannot remove a padlock without a court order, however, having seen this with no mention of the 48 hours notice they would get one and you would probably have to pay costs.

 

Sadly unless you can show us where the 48 hours is mentioned your solicitor was duped.

 

I am not a lawyer, but at work where we have had legal wranglings I have usually found that reading every word of a contract carefully they can be surprisingly clear. Did someone really tell you that their right of access was just on the shared driveway. It very clearly states the whole piece of land edged in brown, which is the entire site.

Edited March 4, 2018 by AliG

[ProDave]

Sadly (hindsight is a wonderful thing) whoever got PP and divided up the plots did a POOR job. They did not take into account the access issue properly.

 

What should have been done is preserve the access, create "agreed" parking for use in association with the access, and then made access to both houses that did not conflict with that.  i.e your garage would be in a different place, not taking access from the shared access, and your front garden should have been a bit smaller to allow parking at point A AND access to the other house.

 

The best you can do now would be to find somewhere they CAN park other than "A" and agree that in writing with them. That will almost certainly mean making an agreed parking area in your front garden for them.  That need not be too bad as you could use grass paviers for example that would give a hard parking area, but when not in use would look like grass.

[newhome]

27 minutes ago, AliG said:

Sadly unless you can show us where the 48 hours is mentioned your solicitor was duped.

 

I am not a lawyer, but at work where we have had legal wranglings I have usually found that reading every word of a contract carefully they can be surprisingly clear. Did someone really tell you that their right of access was just on the shared driveway. It very clearly states the whole piece of land edged in brown, which is the entire site.

 

Yes I was given to believe that their only access was on the shared part and that they could park a single vehicle in the very corner of the blue hatched area which would be fine. I had never seen this version of the document before as it happens (only now that they have sent it). I only have a copy of the old version before the plot was split into 2.  The 48 hours is noted in section 5 but they state that none of this section is relevant to these properties. It goes on forever and I thought it was all relevant but they claim not. 

 

 

 

 

[newhome]

16 minutes ago, ProDave said:

Sadly (hindsight is a wonderful thing) whoever got PP and divided up the plots did a POOR job. They did not take into account the access issue properly.

 

What should have been done is preserve the access, create "agreed" parking for use in association with the access, and then made access to both houses that did not conflict with that.  i.e your garage would be in a different place, not taking access from the shared access, and your front garden should have been a bit smaller to allow parking at point A AND access to the other house.

 

The best you can do now would be to find somewhere they CAN park other than "A" and agree that in writing with them. That will almost certainly mean making an agreed parking area in your front garden for them.  That need not be too bad as you could use grass paviers for example that would give a hard parking area, but when not in use would look like grass.

 

The PP was a nightmare anyway by all accounts. The council changed their mind twice over the access route which is why next door's integral garage has a garage door both ends because originally the access was from the road, and then that was later blocked by the council after an uproar by the community council. Then access was across the front of the plots from the access gate but that was deemed to be too dangerous, and it finally ended up that they could only access via the back of the plot so a garage door was put on the back of the garage too. And it's why a garage was never in the original plans for my house as they couldn't decide where it could go, so we added one later on. They can't park on my front garden as it is a slope plus there is NO access allowed on and off these plots other than via the gate as noted in the PP. They can park in the corner of the hashed bit (which is where I thought they were allowed to park anyway). That wouldn't impede anyone's access but as soon as they drive on and see my empty parking area they just park there. I think a rope may be the answer as suggested further up. 

 

I bet the railway got a tiny tiny amount of money for these plots back in the day (1990 apparently). Makes you wonder why they didn't just hang onto it and have full use at all times without any stroppy house owners to deal with. 

 

 

[AliG]

Sorry, this is a bit piecemeal and I am in the middle of proofreading a book for my wife.

 

Reading that, you (or more correctly the builder/previous owner of the plot) are the grantee.

 

The grantor is Railtrack/The Board of British Rail

 

The 48 hours notice is the notice the builder (grantee) had to give them (grantor) to access the land, not the notice that they have to give you. 

 

Clause 5 refers to rights of access presumably somewhere in clauses 2-4, clause 1 is referred to as a right of way.

 

I always work on the assumption that the only person protecting my interests is me and that I have to read every word of things like this and then ask a lawyer to clarify if I don't understand it. The lawyers maybe should have read it and understood it, but ultimately it becomes your problem, not their's (unless they have been negligent enough to sue them, but then do you really want to take a lawyer to court)

 

@ProDave's advice is correct. It seems that they have not used their right of way much over the years and they will probably stop again. It is really your neighbour who has the problem of being blocked in and you would be helping them out if you offered to provide parking.

[newhome]

 

13 minutes ago, AliG said:

I always work on the assumption that the only person protecting my interests is me and that I have to read every word of things like this and then ask a lawyer to clarify if I don't understand it. The lawyers maybe should have read it and understood it, but ultimately it becomes your problem, not their's (unless they have been negligent enough to sue them, but then do you really want to take a lawyer to court)

 

 

Yes I get that but the trouble is I don't understand all of it, even now. There are pages and pages of it and when a lawyer who you specifically ask to check something out tells you about the parking area and the 48 hour notice period in a document that mostly only lawyers would understand you believe that you are paying for clear professional advice, because if you aren't then what's the point of a lawyer? My neighbour has left it to me to make the first contact which is why I have a follow up reply and they don't. I will call the Rail Track woman this week I think and try to agree a way forward. 

 

 

[asklair]

E-mail this address and ask for the procedure for subcontractors working on site  StandardsManagement@networkrail.co.uk  https://cdn.networkrail.co.uk/wp-content/uploads/2017/12/Accessing-Network-Rail-Standards.pdf

 

 

[vivienz]

I would focus your energy and efforts on reaching some sort of agreement with Rail Track and get it all in writing.  The word 'reasonable' that crops up a lot in the documents works both ways and you have a right to expect them to behave reasonably towards you, too.  Fair enough if they need access to get work done, but not having regard to noise levels and essentially being anti-social would count heavily against them in respect of that.  Before contacting Rail Track, decide what you want as the outcome of any agreement you get from them, as this makes it easier to have a focussed discussion with them and for them to understand exactly what you want.

 

I wouldn't waste any time on arguing with the solicitors.  Sadly, you will rarely get a black and white opinion on matters like this - their life's blood and livelihood depends on being able to argue a point, including why their mistakes were actually the fault of their client.  We have a shared parking area on our plot, on which our neighbours have a right to park and access their homes, but our conveyancing solicitor completely missed this when we were going through the purchase.  Fortunately, I spotted it and had a couple of useful amendments done, but many of them aren't as bright as they would like you to think that they are.

 

Decide which fight is the most important to you, get as close as possible to the result that you want, then move on.

[newhome]

1 hour ago, vivienz said:

I would focus your energy and efforts on reaching some sort of agreement with Rail Track and get it all in writing. 

 

Decide which fight is the most important to you, get as close as possible to the result that you want, then move on.

 

Thank you. I know that I am going to have to be reasonable. My neighbours still think they can 'win' and the 48 hours notice will have to be provided which may be an issue . I'm peed off in truth but know that I need to reach a pragmatic solution with Network Rail. I could do with someone to look over the document and help me understand the details so I will look for a lawyer who can help me with that (although a bit bruised by the last one in truth). However that doesn't alter the action I will take with Network Rail as I have no reason to suspect that their legal team has assessed the Deed of Conditions incorrectly whereas my neighbours think that they have. They told me earlier that they have a letter from their own solicitor noting the 48 hours notice so that's 3 solicitors now!   

 

When the conveyancing was done I was commuting between Kent and Edinburgh working 7 days a week just to keep on top of work. I engaged a relatively expensive solicitor (who was recommended) as I imagined that I would be able to trust them to be thorough when I didn't have the time to be able to do too much myself. My company paid for the conveyancing (they offered me a new role up here so paid for the relocation) so it wasn't out of my pocket per se, but I still had an expectation that this would have been done properly, and of course I have to live with the consequences both in terms of living here and the implications when I come to sell.

 

Off the top of my head (work in progress ) my wish list is for Network Rail to:

 

• Provide contractors who can be identified as genuine and respect that there are private houses here
• Give notice where possible (via email), especially for work scheduled to take place over a number of nights which will surely be scheduled in advance. 
• Have Network Rail's own emergency track access line know who is scheduled to be on the track at this location if I call them - it would seem to me to be a safety issue if they don't know who is on the track at any time quite apart from the route taken to access the track.   
• Agree to park in a new location in the corner of the hashed area if they need to park here (which is where I thought the parking arrangement was anyway). It's also why more room was left in the corner of the shared area. 
• Have someone I can engage with in a reasonable manner if I have any concerns in the future. 

Then I move on . 

 

 

 

 

Edited March 4, 2018 by newhome