private right of way

[fondest]

My father owns a bungalow that is next to a petrol station,he used to own the petrol station but sold it in 1968 and gave the new owner right of way through the top entrance for vehicles to get their petrol and they would then go out the bottom entrance which my father did not own.the garage was then sold on to someone else who had right of way. the petrol station stopped trading in 2006 and is up for sale as outline planning for residential, my father has transfered the land over to my name and i have had full planning permission to build a commercial garage,when the petrol station stopped trading about 9 months later i put a fence up to stop the right of way as i could build my garage. i would like your advice on my rights to keep the fence there as the petrol station is no longer trading.

[Barmaid]

This is what is known as an easement. It will depend on the exact terms. You will need to look at the Land Registry title which should given the full details. Unfortunately, no one will be able to properly comment without seeing the exact wording of the easement.

You also want to hope that Buildersmate or Jenna see this since they know far more about this area than me!

[Eve]

Hiya, my ears were burning :)

Can you let us know the wording of the easement as, as Barmaid says, it will help advise you.

[buildersmate]

Yes, you can't assume that just because the petrol station isn't trading extinguishes the easement.
Info request as above.

[fondest]

i was asked to send the wording of the easement of the question i just posted on the private right of way over a petrol station it says "the purchaser and his successors in title as owners or occupiers for the time being of the property hereby conveyed and his and their servants licensees and customers of the service station in common with all other persons for the time being having a like right at all times and for all purposes with or without vehicles mechanically propelled or otherwise to pass and repass over the portion of the vendors premises

[buildersmate]

Well that sems pretty clear to me. The purchaser and his successors in title means what it says. Your father sold the property AND with it a permanent but private right of way for the successive owner(s) and or their customers to come marching over the identified piece of land. When requested to do so, you are going to have to shift the fence.
Any other angle, Jen?

[Eve]

As the right of way includes successors in title it would appear that the right passes from owner to owner so that any owner of the petrol station land would have the benefit of the right of way.

I'd say the reference to customers of the service station was for for clarity, that the right was intended to include use by customers in case there was any issue raised later on.

You cannot obstruct a right of way. It is feasible to put up security measures and boundaries but anyone with the benefit of the right of way must be able to have access eg a key to any locked gate.

I think it would depend on who buys the land and whether they would want to exercise the right of way, dificult for us to say without knowing the layout of the land or any proposals.

Developers would be unlikely to want to give up rights which can add value to the land, though they may consider letting you buy off the right, paying for the right to be extinguished.

As for potentially being able to ague against like use, I'd say the usage by customers of a petrol station would be likely to be more frequent and heavier than that of residential use, depending on the amount of residential units proposed so I don't think there would be much argument there.

[Eve]

The customers bit shouldn't be confused with owners of any residential units to be built. Customers have no proprietory interest in the land, are just allowed to use the right of way granted to someone else.

The people who buy the petrol station land will be able to pass the right of way on to individual units via leases or, if they sell off parts of the land eg freehold houses, the right of way will automatically pass to them.

I think the best thing you could do is to check out the planning proposals and any potential sellers and their plans (remember they could ask for a change to the planning consent or a completely new one) and see their potential plans, if any, for using the right of way.

You can then try and liaise with the buyers accordingly and see if you can come to some mutual arrangement.

[Eve]

Hiya Buildersmate, you slipped in there while I was rambling :)

Yep, put a lot more succinctly than me :) I agree.

[fondest]

i dont think it will be sold as a petrol station now as the owner has sold all the machinery and tools that were there,and it has been derelict for 2 years, if it was sold for houses then would i have a good argument about the right of way as customers would not be using it, it would be the persons who live there.if it were to open back up as a petrol station then i would remove the fence as i dont mind them having the acess, but could i charge them a fee to have the access as i am the new owner.

[oldmaggie]

The wording on the document is... for the time being......which I would understand to mean until you the owner decides to revoke the permission

[themas]

fondest; No - re-read what Jen says - it's quite clear you can't impose any conditions and will have to re-open the right of way if requested.

oldmaggie: No. The wording you quote simply refers to whoever happens to own or occupy the property at any point in time.

[fondest]

thanks for all the help i am going to see tomorrow if i can see the outline planning again as the owner of the petrol station had to put in for outline planning again in october 2008 as the other planning had run out after 3 years.that is if they let me see it now as i did not object, the owner of the station does not live in the town so i dont see him that often but since the station has been closed there is graffeti on the walls and shutters,it has been broken into and as i am a mechanic myself i have had cars damaged so really the fence is securing my land,as boy racers were speeding in through one entrance and out the other the police do know about the problems there and just say they would keep an eye on the property but i dont know if they do.i forgot to mention the owner of the station went bancrupt but i know that doesent make a difference

[buildersmate]

We also try and answer Planning Consent questions here!
1) You will be able to examine the Planning Application and the permission granted (I assume that it was), together with any Conditions imposed on the grant. These documents are public documents and any old bod can apply to see them. Looking at the plans should give you a pretty good idea what the new owner intends for the area of land that you own but which has the easement running across it.
2) You may be lucky and find that they are not proposing to use the access as part of the new development.
3) Irrespective of graffiti, boy-racers and other nuisances, I'm afraid that you still can't legally continue to block it off from the owner of the site (if he wishes to use it as access).
3) You best hope is that 2) above applies and the need for the easement will just quietly disappear of its own accord.

[fondest]

just to let you know went to the planning office today and it was closed and re opens on friday ,so i will go then,the owner still has access to his station throuhg the bottom entrance which is about 30 feet wide, we had a bit more trouble last night a spoiler and back bumper was stolen off my sons peugeot 206, so we have put a camera up today and security light, the police were informed but they just said when they do their rounds they would check to see if everything was ok, it is starting to get me down now i just wish someone would by it,as i think it is going to be empty for a very long time. thanks for all your advice and will let you know what happens on friday when i see the outline planning for the station.

[fondest]

have been to the planning office today and saw the plans,it says that the deveopment will have good access via its exisiting 12.5m wide entry point onto the highway (which is the bottom entrance into the petrol station which the owner owns)as it is outline planning they cannot say how many dwellings will be built there.there are eleven reserved matters such as contamination and stability but the right of way is not one of them.would it make a difference as the right of way used to be lease but i bought the lease last year so now it is freehold. could i revoke permission as he has accesss through the bottom entrance ?, or could i get a suspension of easement untill the station is sold.also could you tell me what is a unilateral notice which is on the title registar of the owner of the petrol station. thanks












































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[buildersmate]

No I don't believe that you can 'suspend' the easement. Which land was leasehold that you now have the freehold of?
I don't know what a unilateral notice is.

As I understand it, there is a fence up now, but you are concerned about the owner reclaiming his access?
If the OPP does not show the development proposing to reuse the access, I reckon you are just better off sitting tight with your fence intact and wait to see what happens.

An easement is a transfer of a right in perpetuity. You are better off trying to get to lapse via a development that doesn't use it than poking your head above the parapet and reminding the developer about it. presumably once the development is doenit will be at the back of someone's new garden?

[fondest]

I have just had an up to date title registar of the petrol station and on the end of it says if there are any matters that affect the land ,which there is it says that there is a registered charge dated the 28th feb 2003 to secure the monies including the further advances therein mentioned. please could you tell me what this means thanks