Access Rights

[Guest Alphonsox]

Being pedantic your agreement in whatever interpretation is between you and Railtrack. If someone turns up at your property and cant clearly prove they are employed by Railtrack then they have no right of access. Being more pedantic it's not clear to me from what you have posted so far that the right of access extends to sub-contractors of Railtrack as opposed to direct employees even if they can identify themselves.

[vivienz]

Agreed, and this would be worth emphasising to them. The onus is on RT to prove that the workers are genuine and you shouldn't have to go searching for that. A perfectly reasonable stance.

[newhome]

6 minutes ago, Alphonsox said:

Being pedantic your agreement in whatever interpretation is between you and Railtrack. If someone turns up at your property and cant clearly prove they are employed by Railtrack then they have no right of access. Being more pedantic it's not clear to me from what you have posted so far that the right of access extends to sub-contractors of Railtrack as opposed to direct employees even if they can identify themselves.

 

I read that contractors can access in the definition of Railtrack in the below, but I am not prepared to let anyone access the property without being able to identify who they are. I don’t think anyone would stand for that. 

 

 

[newhome]

I looked at the previous location plan from before the plot was divided. It clearly seems to demonstrate that there is an intended route to be taken in order to access the gate but it looks like when the plot was split and the new access route drawn up the parking position 'A' wasn't moved to the new intended area and was left in the middle of my neighbour's drive. How did 3 lawyers miss that? 

 

 

[AliMcLeod]

On 04/03/2018 at 15:37, AliG said:

 

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. 

 

 

Isn't that the other way about in that the plot owner is granting the right of way to Railtrack. So, the plot owner is the grantor of the servitude to Railtrack, who is in turn the grantee?

[newhome]

19 minutes ago, AliMcLeod said:

 

Isn't that the other way about in that the plot owner is granting the right of way to Railtrack. So, the plot owner is the grantor of the servitude to Railtrack, who is in turn the grantee?

 

Yes that’s how I read it in truth. 

 

My neighbour has engaged a solicitor. She has some different letters from her solicitor and it appears that Network Rail used an agent for the land registry entry and her new solicitor says that it’s not uncommon for these to be done incorrectly. It’s clearly in her interests more than mine to get the parking access agreed as currently it’s in the middle of her driveway but we are both agreed about where it was intended to be and will proceed accordingly. 

 

She has asked him to clarify the notice period etc. 

 

He has quoted £280 per hour. Is that the going rate? 

 

 

[Ferdinand]

1 hour ago, newhome said:

He has quoted £280 per hour. Is that the going rate? 

 

I rather suspect it may be for a senior solicitor, but it may be towards the top end of the band. Ouch.

 

I am generally staying out of this because it is Scottish Property Law, which is beyond my ken, however just in case it is useful 

 

1 - Your first set of photos here  seems to include a clause where you can tell them which route to take over your land. If the bit they are parking on belongs to you or your neighbour and that applies, then you have that right.

 

2 - If you have a Right of Way to your garage, and parking is obstructing it, then you potentially have comeback. In English law the terms used would be things like "substantive interference" and similar. Down here you could stop on a RoW to unload and block it for a reasonable time, but not to sit in your car and eat your lunch.

 

3 - Have you considered a video camera discreetly trained in that direction for evidence - just in case? People on BH can recommend "site security" cameras which can be monitored remotely. The only issue would be power.

 

I feel your pain on expensive solicitors with good reputations. Ours delayed the sale of our last house by 2 months by misfiling our deeds then saying they could not find them, so we went most of the way through the "possessory title" process, and then they found them again. Quite how you misfile a pile of papers about a foot thick with vellum (I think) and handwritten copperplate going back to 1800 or so is one of the irreducible mysteries of the universe.

 

Ferdinand

 

Edited March 5, 2018 by Ferdinand

[AliG]

2 hours ago, AliMcLeod said:

 

Isn't that the other way about in that the plot owner is granting the right of way to Railtrack. So, the plot owner is the grantor of the servitude to Railtrack, who is in turn the grantee?

 

It is clear from Clause 1 that British rail (The Board) was the original owner of the land and the original Grantor.

 

It is not clear what has happened since then. The plot plan still has the entire area marked with a brown outline which is described as "The Board's Land", even though at this point some of the land must have been sold so why do they still consider it all their land. The clauses shown  appear to have been written to stop people interfering with the running of the railways. They may have been granting Railtrack access or they may have been granting the builder of the houses access.

 

The rights here may not have been passed on to the current owners, but I am  not sure of this. This is where a real lawyer needs to look at all the paperwork.

 

 

Edited March 5, 2018 by AliG

[newhome]

6 minutes ago, AliG said:

 

The rights here may not have been passed on to the current owners, but I am  not sure of this. This is where a real lawyer needs to look at all the paperwork.

 

 

 

As I read it, we the owners are now ‘the board’ as noted in this definition. 

 

 

[AliG]

It could be but as it states "includes the respective successors in title of such parties except where any limitation contrary intention is stated or is apparent"

 

It could have been varied according to this clause.

 

I tried to buy a house where the original owners of the land continued to have rights over the land. I thought this had been done away with when the feudal system was abolished in Scotland, but apparently the rights can continue if someone has a continuing interest such as being a neighbour.

 

What I am not clear on is when you parcel up the land do all the rights pass on to every owner or not.

 

There is a good chance that "the board" put in a clause that changed things when they sold the land basically.

 

 

 

 

Edited March 5, 2018 by AliG

[Simplysimon]

i would think that 'the board' or 'railtrack' or 'successors', is meant to imply that if they have their name changed as in gpo to bt or post office depending as to how the existing company may be split up. british rail split to railtrack and the rest of the network.

 

[AliG]

Yes as pertains to the Board and Railtrack, successors are just successor companies.

 

However, the grantor and grantee include "successors in title" who are subsequent owners. The trouble is that this is only if they don't vary things when they sell it on.

[newhome]

2 hours ago, Ferdinand said:

 

I rather suspect it may be for a senior solicitor, but it may be towards the top end of the band. Ouch.

 

I am generally staying out of this because it is Scottish Property Law, which is beyond my ken, however just in case it is useful 

 

1 - Your first set of photos here  seems to include a clause where you can tell them which route to take over your land. If the bit they are parking on belongs to you or your neighbour and that applies, then you have that right.

 

2 - If you have a Right of Way to your garage, and parking is obstructing it, then you potentially have comeback. In English law the terms used would be things like "substantive interference" and similar. Down here you could stop on a RoW to unload and block it for a reasonable time, but not to sit in your car and eat your lunch.

 

3 - Have you considered a video camera discreetly trained in that direction for evidence - just in case? People on BH can recommend "site security" cameras which can be monitored remotely. The only issue would be power.

 

I feel your pain on expensive solicitors with good reputations. Ours delayed the sale of our last house by 2 months by misfiling our deeds then saying they could not find them, so we went most of the way through the "possessory title" process, and then they found them again. Quite how you misfile a pile of papers about a foot thick with vellum (I think) and handwritten copperplate going back to 1800 or so is one of the irreducible mysteries of the universe.

 

Thank you Ferdinand. I will be sure to tell my neighbour not to exchange too many pleasantries for that money , and to get straight to the point and have a list of clear instructions. I have told her that I am prepared to cover half the cost of the work as it will benefit both of us if everything is fully understood when we go to sell. 

 

I suppose that if parking in a specific location blocked my garage they could just ask to park elsewhere. As far as I am concerned I will only allow them to park in the shared area (there is plenty of room there), and not on my own private parking area. If they park right by the fence it shouldn't restrict my access I believe. One of my concerns is that vehicular access and parking doesn't state how many vehicles they can park here but I have assumed that if they could park at point A on the old plan then they would be restricted to the size of the yellow box on that plan which looks like 1 or a maximum of 2 vehicles. It's not really the parking that concerns me that much however, it's being able to turn up without any notice and without anyone being able to tell me who is there. 

 

A security camera could be a good idea. There is power in the garage anyway so it shouldn't be too difficult to rig up. 

 

They have brought this on themselves in truth. Night after night of disturbance from their contractors was just the catalyst for us taking some action. Had they acted in a reasonable way and kept the noise down I doubt we would even have known that they were there! 

 

[lizzie]

4 hours ago, newhome said:

He has quoted £280 per hour. Is that the going rate? 

 

That is about average for a senior at Scottish rates I believe. It seems they are generally more expensive than English.

[newhome]

1 minute ago, lizzie said:

That is about average for a senior at Scottish rates I believe. It seems they are generally more expensive than English.

 

This one better be good . 

[newhome]

On 3/4/2018 at 17:12, asklair said:

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

 

 

 

I was going to email them tonight but when I read the pdf it says: 

• Must not distribute our standards and controls outside their organisation.

So surely I wouldn't be entitled to it? 

 

 

[Ferdinand]

7 hours ago, newhome said:

 

I was going to email them tonight but when I read the pdf it says: 

• Must not distribute our standards and controls outside their organisation.

So surely I wouldn't be entitled to it? 

 

 

 

NEtwork Rail arsecovering and/or red herring.

 

1 - The doc applies that statement to Principal Contractors. Are you a Principal Contractor to Network Rail? Yes or No ? 

 

2 - They have published it unprotected on the Internet. I think you can assume they are happy for people to read it.

 

3 - They have published it on their own website.  It would be an interesting world where you cannot refer to material on an organisation's own website when talking to them.

 

You should be fine.

 

F

[Ferdinand]

9 hours ago, newhome said:

 

This one better be good . 

 

MY practice for solicitors now is that I go for long established local firms of perhaps 2-3 offices and a small number of principals and up to a few 10s of staff, rather than regionals with a couple of hundred staff and prestige offices who want to believe they are on a par with the Magic Circle, and charge accordingly. Really that comes down to firms small enough that they still all know each other and do not have umpteen overheads and employ a pot plant service to keep the office green. I try and find the appropriate experienced principal.

 

And I have spent quite a lot with solicitors in the last few years because we sold a field to a big developer and the contract was huuuuuuge, with added elephant traps.

 

If you have somebody expensive (even though you will get estra support time per billed hour) then perhaps @lizzie could advise how to manage costs?

 

The other route to go might be to source your own solicitor eg from pertinent legal bloggers, though it has perhaps gone past that point.

 

My thought would be a tight brief and very regular verbal updates, and fixed prices for sub packages if they can do it - all probably confirmed from your side by email so you write the record. Unless you earn more than £280 an hour yourself  so can make a profit on it, but that would require you to work as an Interim Director or BBC football pundit. Or lawyer . (*)

 

Ferdinand

 

(*) Felt the Planning Officers deserved a break.

 

Edited March 6, 2018 by Ferdinand

[Ferdinand]

Found it 

 

 

F

Edited March 6, 2018 by Ferdinand

[newhome]

6 hours ago, Ferdinand said:

 

The other route to go might be to source your own solicitor eg from pertinent legal bloggers, though it has perhaps gone past that point.

 

 

I spoke to my neighbour last night. She has asked the solicitor to claim compensation from her previous solicitor for the fact that the house doesn’t have a completion certificate which she has letters to prove that this was the agreed basis of the sale. So she is having to pay for the residual work required by the council in order to get the house signed off which should have been addressed by and paid for by the previous vendor. Plus she’s asked him to clarify the access conditions and get the deed of conditions reworked to show parking in the intended area. That sounds all very costly to me, and most of that is nothing to do with me so I won’t be contributing to that. He is apparently billing her as he goes so she shouldn’t be hit with a large bill at the end, and he has told her that he thinks she has a good case against the solicitor if you can rely on that. 

 

He was recommended to her so hopefully he will be good. 

 

All I want really is for someone to review the document I have and explain the contents. I could do that using a decent online service I imagine but I googled and just seemed to find lots of links requesting money ‘to answer your question’ which is not what I really need. My issue is that it’s Scotland and I only know English lawyers. 

 

And no I don’t earn £280 an hour lol! 

 

 

Edited March 6, 2018 by newhome

[HerbJ]

You should consider instructing a barrister/advocate instead of a solicitor. They are usually much cheaper than a senior solicitor (because they are self employed and don't have the high overheads), they're more efficient and you can choose a barrister with the specific expertise in property law you require, even to reviewing their CV and experience. In any case, if a solicitor gets a difficult legal problem he will be proposing that he instructs a barrister with the specialist expertise on your behalf and you may end up paying both their costs for the same problem. 

 

Not exactly sure of the position in Scotland but on a quick check http://www.advocates.org.uk/instructing-advocates/different-ways-of-instructing-an-advocate you may be have to be  a member of a professional body,  or similar, listed in the Faculty of Advocates Direct  Access Rules - attached.  

 

In England, anyone can instruct a barrister for legal advice - it's called Public Access. I have done this successfully in a neighbour dispute case some 10 years ago and saved a lot of money. A barrister can write opinions, letters and represent you in meetings but they  cannot start legal proceedings in court on your behalf that's back to a solicitor, who then works with your barrister..  The first thing to do is google "barrister specialising in Property Law" in say Edinburgh (though it doesn't really matter and you could use an advocate from any Chambers in Scotland) and that should get you to a list of advocates and their chambers. You should then be able to ring the Chamber's Senior Clerk and outline your issue. They may be able to give you a lump sum, if you can define the issue (maybe sending some documents) and what you want - a written opinion, for instance.

new-direct-access-rules.pdf

Edited March 6, 2018 by HerbJ

[curlewhouse]

Can you get any indication how long this work will continue? I suspect it may be temporary. I used to live in an old station house beside a railway crossing which once a year was lifted and relaid on a weekend night. They also parked there to access the track further down as at the time new cabling was being done. This then attracted assorted toe rags to steal the cut up cable! (I got a couple of them caught). The worse part was once when working on the line they set up a new (at the time) safety system which "whooped" loudly every few seconds to show it was live, then changed tone when a train was approaching - so this damn thing "whooped" every minute or so all through the night until they finished around 5 a.m!

However these were all temporary things. The plus side was I got to see the trains .

 

[newhome]

1 hour ago, curlewhouse said:

Can you get any indication how long this work will continue? I suspect it may be temporary. I used to live in an old station house beside a railway crossing which once a year was lifted and relaid on a weekend night. They also parked there to access the track further down as at the time new cabling was being done. This then attracted assorted toe rags to steal the cut up cable! (I got a couple of them caught). The worse part was once when working on the line they set up a new (at the time) safety system which "whooped" loudly every few seconds to show it was live, then changed tone when a train was approaching - so this damn thing "whooped" every minute or so all through the night until they finished around 5 a.m!

However these were all temporary things. The plus side was I got to see the trains .

 

 

I contacted the lady at Network Rail today. My God she can talk for Scotland and I could hardly get a word in edgeways . Anyway I think we will find some middle ground.

 

She started off by saying that maybe they could agree to restrict parking to 3 vehicles and I said that this wasn't possible as the agreed access point would not allow for that, and nor was it desirable for them to park outside on the road. I asked if they could maybe park in the cemetery car park a couple of hundred yards further up the road (it's always empty), and she's agreed to ask the contractors and staff to park there in future rather than on my property. That way their 'briefings' that she said were so important to hold will only be waking the dead and not me . And if they only walk through here to access the gate and are then gone that will be fine and I doubt I will even notice them.

 

They are apparently doing improvements to a stretch of the line for 11 weeks. I have asked that they provide notification of when it is planned that they work in this location and need access. We half agreed on this point and she said that she couldn't agree to that all the time but they would try. They have a tendency to send generic letters to everyone with a property that borders the railway line and on this occasion they had sent a letter saying sorry for any disturbance until end April (3 months). I actually contacted them when I received this letter and asked if they needed access during this time and was told no (which she admits was wrong). I said that a generic letter may be acceptable for information for most people but for those of us with properties that would be accessed this was not enough, and we required more specific letters with more specific details and plans for access. My main concern around this is that the people doing the updates seem to be a tad incompetent (I didn't say that to her ). I said that I would not be allowing access to anyone who had no ID and where I had not been given notification of works, and if this was in the night I may be forced to call the police. I noted that there had been thefts from the farm / farmhouse a bit further up and I said that it was unreasonable to ask me to make an assumption that everyone who arrived in an unmarked white van was here on railway business rather than up to no good. 

 

They very occasionally have the track alarm on here. It makes a cheeping sound when things are 'safe', and a more 'busy' sound that warns when a train is due. That doesn't bother me to be honest. I don't hear it inside so maybe on the 1 day of summer in Scotland I may hear it  but they don't use it at night when the railway is closed and given most of the work is at night it's a non issue really. 

 

So in summary it looks like the parking issue is hopefully nailed, the noise / behavioral issues may be nailed, and there will be some more negotiation to be had over the notice period and the identification of personnel. And all without resorting to a solicitor  although I may still need one to help me understand the full legal implications of the Deed of Conditions. It's not in their interest to annoy householders to the extent that they become uncooperative really. 

 

Thank you to everyone on here for their input. All the responses allowed me to think through the implications of the different courses of action, and focus on what I wanted the end result to be. I was thus able to communicate my desired outcome in a clear, unambiguous way, and it appears that we can agree on at least 2 of the points. I will not be compromising on the point regarding proper ID,  but if I don't get the 48 hours notice, well if they are only walking up the drive to the gate on a occasional basis that's not a major issue for me really. 

 

Edited March 6, 2018 by newhome

[Ferdinand]

I think you probably want a recording when the War and Peace document is being explained in all its gory glory, for future reference when you are unclear on something in 2 or 6 years time.

 

And probably at some point to confirm your restrictions in writing. What about "Network Rail workers will only be allowed in chicken suits"? 

Edited March 7, 2018 by Ferdinand

[newhome]

1 hour ago, Ferdinand said:

I think you probably want a recording when the War and Peace document is being explained in all its gory glory, for future reference when you are unclear on something in 2 or 6 years time.

 

And probably at some point to confirm your restrictions in writing. What about "Network Rail workers will only be allowed in chicken suits"? 

 

Ah yes, that was my intention re the walk through. I am going to annotate the document with plain English statements to make it clearer and keep on file. It annoys me that in the 21st century we haven’t managed to modernise the language used in these documents to be honest. 

 

And I’ve already started to confirm my restrictions in writing by following up my conversation with an email detailing those areas that we have reached agreement on and those that I am still holding firm on, like the 48 hour notice period (for now) and the position on ID. It’s reasonably conciliatory but direct in places and I hope is unambiguous. 

 

What surprised me is that she expected me to speak for my neighbours too who she now knows have engaged a solicitor (they told me I could tell her that) and she asked for their email address etc which I explained wasn’t my place to provide. She still stated that the chain would be removed whenever they required access and I did state surprise that she should suggest this, but my neighbour removed it last night after I explained where I had got to in terms of the parking etc. Maybe I should be a mediator 

 

I dare say there will be some drama to come but hopefully we are partially there.