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Stuart J
Stuart J, Solicitor
Category: Law
Satisfied Customers: 22401
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street Practice
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I have owned my property for 27 years and for 26 years I have

Customer Question

I have owned my property for 27 years and for 26 years I have had a gate in to the woods for 26 years am I now entitled to automatic entry or can it be stoppped
Submitted: 3 years ago.
Category: Law
Expert:  Stuart J replied 3 years ago.
Do you have proof of this access?
Customer: replied 3 years ago.

yes, when we purchased the land , years later we had a letter out of the blue to say we had to sign a form of entry but in my husband's name only, as they omitted to include me. Does this mean I can use the woods as the deeds are in our joint names

Expert:  Stuart J replied 3 years ago.

Please explain the deed of entry. Do you have exact wording please?

Who owns the woods?

We need full background please. Thanks

Customer: replied 3 years ago.

The Environment Agency now owns the woods, but we purchased the woods fromthe previous owners Southern Water Authority. There is no actual Deed of Entry. but a letter as follows:


 


In consideration of the Environment Agency (hereinafter called "the Agency") permitting the licensee as defined in Schedule 1 hereto to erect a gate in the boundary fence of Garden Cottage and to use such gate to enter onto the property belonging to the Agency ("the land") acording to the terms stated in Schedule hereto which permission may be withdrawn at any time by the Agency without notice the Liscensee hereby undertakes


 


a. not to bring any action claim demand or proceeding against the agency its servants and agents except in respect of liability for death or personal injury resulting from negligence


 


b. at all times hereafter to indemnify the agency its servants and agents against all actions claims demands proceedings charges and costs which may be brought against or incurred y it or them.


 


in respect of any injury to person or property whatsoever and howsoever caused due to the presence of the licensee on the agencys property this does not constitute ay right of way onto the property


 


The consent of the agency to presence and use the gate does not constitute any right of way or other interest in or right over the agency land and is granted subject to the rights of all other persons and to all rights and easements statutes byelaws rules orders and regulations for the time being in force affecting the agencys land.


 


The licensee (myu husband)


 


purpose erect gagte and boundary fence to environment agencys approval and to maintain in good repair. To use the gate to enter onto Park Wood, Hellingly belonging to the Agency during daylight hourse


 


 


 


I would add that when we purchased our property there was no covenant in it to make us sign this document.


 


We have been plagued by the EA administrators ever since they took over the land from the previous owners.


 


I would reiterate my name was never on the Form of Indemnity.


 


 

Expert:  Stuart J replied 3 years ago.




I am somewhat confused because you say "the
Environment Agency now owns the woods, but we purchased the woods from the
previous owners..."

. So do you own the woods or does the environment
agency own the woods?



The licensee appears to be your husband and this
right to have the gate appears to have come later so I cannot see why a
covenant to make you signed the document when you bought the property is relevant.



I assume that regardless of the statement that you
own the woods, that is a typo and the Environment Agency actually own the woods.



In which case the licence is personal to your
husband, it can be revoked and it does not pass with the house to successors in
title/buyers.



It also, does not extend to other lawful visitors,
which is somewhat surprising that is how it is worded.



If you own the fence, they cannot make you remove
the gate but they could actually stop you coming through it. They could
actually stop the gate opening outwards over the wood land.



The deed quite clearly says the presence of the
gate doesn't constitutive right away or any grant and it's also quite clearly
says that it can be terminated without notice.



The situation would be somewhat different. If the
gate had been put in situ and you had enjoyed the access for more than 20 years
without consent. In that case, you could have claimed a prescriptive easement,
but because you were given consent. A prescriptive easement cannot arise.



I appreciate that this is probably not the answer you
wanted there is no point in me misleading you.



Can I help further?



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The thread remains open for us to continue this exchange



Stuart J, Solicitor
Category: Law
Satisfied Customers: 22401
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street Practice
Stuart J and 3 other Law Specialists are ready to help you
Customer: replied 3 years ago.

Hi again,


 


Yes, the woods backing onto our land is now owned by the EA. We purchased two acres from the previous owners and where allowed entry from our land onto the EA land.


 


How does the Citizens Charter dated 22nd July 1991 effect us.


 


 


 


As the Form of Indemnity never included me does that mean I can obtain entry.

Expert:  Stuart J replied 3 years ago.




The form of indemnity does not grant any right.

The right is granted in the licence, to your husband and
he provided the indemnity to the Environment Agency in respect of people
getting injured.



The licence is personal to your husband and you have no
rights over it. It is a very odd way of doing it that, but that is how it is
worded. There may be some wording elsewhere which refers to successors in title
and servants and agents, but there is not in the clip that you have given me.



As this is a licence granted specifically, I cannot see
any relevance whatsoever to the Citizen's Charter



Customer: replied 3 years ago.

I understand what you say, but as I was never included in this Form of Indemnity and have continually used the entrance from our garden into the wood for more than 20 years without consent (as I did not use the Form) could I claim a prescriptive easement.


 


I have found the Schedule of Restrictive Covenants and the only clause I can find relating to the boundary fence is as follows


 


(ii) will construct to the vendors satisfaction and hereafter maintain in good repair and condition a fence of stock netting with two strands of barbed wire or such other fencing as shall be approved by the venor at least fourfeet six inches on all boundaries on the property hereby conveyed.

Expert:  Stuart J replied 3 years ago.




That isn't a restrictive covenant, that is a positive
covenant which only applies to whoever covenanted in the first place. Although
there can be a string of such covenants between successive owners.

There is a very slim possibility that you could argue
that because the original licence only applied to your husband you used it
without consent and therefore, whilst the consent can be withdrawn from him, it
cannot be withdrawn from you.



If it came down to a legal battle with the environment
agency. remember that they have more money than you to take the matter to court
if they are trying to withdraw this access.



Customer: replied 3 years ago.

Thank you very much for being so helpful, regards, Debbie

Expert:  Stuart J replied 3 years ago.
Glad to help

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