prescriptive rights

[jennymac]

Hi anyone out there can help me with a sample letter asking for prescriptive rights to a piece of land adjacent to my property. I use it for parking as there is no where else to park because I live up a lane and my neighbour has now objected, even though he has a driveway ( I have no room for one). The land belongs to Railtrack and the previous owner bought a deed of grant which he told me gave him the right to park and no-one else because they did not buy it. There is only three houses in the lane and I am the only one with no driveway. I have contacted Railtrack who gave me permission to park there but they now say I cannot do so. I think it is because they do not want to get involved in a neighbour dispute, which I can understand but I still have nowhere to park. I was told to submit a Statutory declaration form by Railtrack for prescriptive rights but do not know how to proceed. Any help would be gratefully appreciated.

[cassa333]

I can only suggest you try www.gardenlaw.co.uk They have TONS of advice that they give.

[jennymac]

Cheers Cassa will do that now.

[buildersmate]

Personally I do not believe you are going to able to do this without employing a solicitor.
For a kick-off, a Statutory Declaration has to be organised by a Commissioners for Oaths - who will be a solicitor anyway. You are going to need to show at least 20 years to use - and I suspect that means involving the former owner as well to get the necessary minimum 20 years proof.
Armed with the statutory declaration, you then complete a Form from the Land Registry to make a claim for an easement by prescriptive rights - as you have clearly latched onto. The LR will then deal with Railtrack (as the owner of the land) and see what they have to say about it. It sounds like they are not going to challenge it. Then the LR will register your interest over the land via the easement in both your LR Title Register and that of the Railtrack land.
I'll bet you won't find any of this in Garden law.

[buildersmate]

Having read your post, I suspect there is going to be a problem - you had permission to do this from Railtrack. Gaining rights via prescription is usually based on gaining something from doing it continuously, in secret and without permission. I say usually because I think there are a few let-outs (Lost Grant? - Jenna can you help here?).

[jennymac]

Thanks builders. I have contacted a solicitor but wondered if there was a way I can do it without incurring any costs. If it just the declaration I need from them then that is OK. The previous owner is prepared to agree to a declaration with me and he lived there for 20 years and I have lived there for ten so between us we can do it. It was just the wording of the letter I wanted but if it has to be done by a solicitor I will just have to pay up. I cannot believe how some people will argue over something that really does not concern them, is it because you have something they dont, I find it so petty and annoying. Garden law is a forum and I have posted the same on there so thanks both for your help lets hope the outcome is as helpful.

[bednobs]

when you bought the house, did this come up with the solicitor at all?

[jennymac]

When we bought the property the owner told us that he had this deed of grant which allowed him and only him to park there because nobody else bought a deed of grant too and foolishly we took his word for it and never looked into the matter deeper. Hindsight is a great thing isn't it.

[buildersmate]

Here is some more info that will help - this is the Practice Guide produced by the Land Registry on claiming an easement by prescription. It is written in plain English, not legalise, so should be OK. It also explains about which forms are necessary.
One thing of concern - read Para 2.5 - which talks about Railway land. It seems to suggest that railway land is a non-starter for this - I didn't know about this 'nuance'.
If it does turn out to be a go-er, you will need 2 Statutory Declarations - one from you and one signed by the former owner - to make up at least 20 years.
http://www1.landregistry.gov.uk/assets/library /documents/lrpg052.pdf

[shatterarlet]

How can a sample letter be obtained so that the previous owner can obtain a copy to sign passing on the Prescriptive Rights to the present owners? what is required in such context so for it to be pliable

[Eve]

I'd say your first course of action would be to try and trace the Deed of Grant and see if it subsists (ie extended to use by successors in title to the land you own - basically stays with the house and benefits whoever owns it at the time).

I note you said the previous owner said he would provide s stat dec, if you are in touch then could you ask him about the deed itself.

It is possible that it is already registered on your title if the title is registered at the Land Registry. Do you have a copy of the title register you can check, you can download a copy for �3.00 if not.

http://www.landregisteronline.gov.uk/

If not then try and find out what happened to it, check with the previous owners, the solicitors who acted for you on your purchase, see if previous owner can check with his solicitors who acted for him on the Deed or his sale or purchase, basically anywhere deeds could have ended up.

You could try the Land Registry, it would normally have been registered on both pieces of land when produced but mistakes do happen.

[Eve]

It is possible that there are two copies of the Deed, it would be the one signed by Railtrack you would need for registration but even tracking down another copy, signed or not, could give you the information you need as to whether you still have a right you can register.

If there is no joy with any of this then a stat dec is pretty simple to draw up. You may even be able to get someone at CAB to help you with it as they're pretty standard, you just need to make sure it's set out right, includes all the relevant info (inc the appropriate evidence for claiming a right of prescription - see buildersmate's link to the practice guide above) and has the appropriate declaration at the end.

A solicitor doesn't need to draw it up but it would need to be sworn in front of a solicitor or commissioner for oaths. Solicitors are usually cheaper and the usual fee is about �5.00 for a swear and it only takes about 5 minutes. I think qualified legal execs can do them as well.

The Land Registry are pretty good at helping people fill the forms in too.

Hope this helps, let me know if you need any more info.

[Eve]

Sample stat dec...

I (full name) of (address)

DO SOLEMNLY AND SINCERELY DECLARE as follows:-

1. I am the registered proprietor of the land known as (address) and registered at the Land Registry under title number (title number).

2. I have used the land known as (xxx) and registered at the Land Registry under title number (xxx) (if part you can refer to it eg edged red on the plan attached hereto at Annex 1) for the parking of a motor vehicle continously and without force, secrecy or permission (maybe issue here!) for the period of xxx years (previous owner can do similar for his ownership).

3. (Other relevant info...) etc...

AND I make this solemn Declaration conscientiously believing the same to be true and by virtue of the provisions of the Statutory Declarations Act 1835.

SIGNED AND DECLARED at (solicitor to fill in)

in the County of (solicitor to fill in)

this (solicitor to fill in) day of (solicitor to fill in) 2009

Before me (solicitor to fill in)

Solicitor/Commissioner for Oaths

***************************************************************

Ps - you will need to be careful of 2.5 of the practice guide re railway land if the previous Deed of Grant cannot be found.

[jennymac]

Gosh I am overwhelmed by your responses, thank you so much. I have looked at the deed of grant and it states that I must not obstruct vehicles wishing to turn in the area where I park. It does not state that I am allowed to park there but at the same time it does not state that I am not only that I do not cause an obstruction. As previously stated Railtrack agreed to me using it for parking until my neighbour kicked up about it and they then said no. I have continued to park there after Railtrack put up signs to say no parking but my neighbour rang and told them. If this deed of grant was not for parking purposes why pay Railtrack �4000 which was what it cost the previous owner in 1986. And do you think I would have a case if the deed of grant does not specifically say I cant park there only I cannot obstruct other vehicles. I value your responses keep them coming I have found out info I did not know before. Thank you so much

[buildersmate]

Wow, Jenna - a little bit of knowledge always was a dangerous thing.
So you don't think the permission by Railtrack to do this during the 20yrs period nulls a claim under the Prescription Act?

[Eve]

It's difficult to know without seeing the Deed itself and what it says, is there any way you can type out the relevant bits leaving out any identifying info.

�4k is a hell of a lot of money, especially back then! Does it not seem to grant any rights at all of does it grant rights but only for a certain period of time or personally to the previous owner or anything like that.

Might sound daft but are you sure you have a copy of the whole document, it couldn't be missing a page or something?

One thing I would say is to be careful about approaching Railtrack about anything which isn't very very simple so you don't do or say anything which could prejudice any future action that you could take.

What is your neighbour's issue with you parking there? Does it in any way obstruct him in access, parking at his own property, necessary turning etc?

I think you need to establish exactly what the Deed of Grant does or doesn't allow you to do before planning your next move.

[Eve]

Hi buildersmate, didn't see you pop in there again :)

Permission wise it isn't great though if there is a grant which is still valid (and does actually entitle parking there still) then that should be registrable.

I'm wondering if it follows a similar line to the recent Pye case in adverse possession as that involved an initial permission which was later terminated (http://www.propertylawuk.net/adversepossession pyegraham.html) though it's a very complicated case in itself (I went to an hour long seminar on it by a barrister) and, as I said, relates to adverse possession rather than prescripton but thought you might find it interesting buildersmate.

I think it's similar in that permission can lapse but I think timespan could still be an issue here.

[jennymac]

Will get the deed of grant out and let you know exactly what it says.

[buildersmate]

Thanks Jenna - can't get your link to work but will trawl the Propertylawuk site later. BM

[jennymac]

Just in case you missed it I put on a new posting with the deed of grant wording

I had to split it up because it was too long and the third part is listed first and the first part last. Hope that makes sense


Thanks