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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10525
Experience:  Barrister 17 years experience
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I own a piece of land next to my house that is made up

Customer Question

hi, i own a piece of land next to my house that is made up of an overgrown verge and a bit of a private roadway. the private road is made up of a gravelled road with verges at various points along its length. there are rights of way registered against my title. some specifically exclude the verge, one refers to a hatched area that is not evident on the filed plan and one (from 1924) refers to a right of way over the 'road and footway' of the private road. my question is can i split my deed into a verge deed and a roadway deed and leave the rights of way on teh road deed and have the verge deed with no rights of way on it? i understand that the dominant owners (houses whjo live down the private road) will be informed by Land Registry and would have the opportunity to object to this but my assumption is that they would not as the verge is not and has not been for many years, if ever, been a part of the right of way.

if someone were to object what would be the process from that point.

thanks in advance for any advice you can offer. paul

Submitted: 1 year ago.
Category: Law
Expert:  Buachaill replied 1 year ago.
1. Firstly, I think your plan has a fatal flaw. An easement, such as a right of way, does not just lie, or be a burden on the folio, against the piece of land over which it runs. It is registered against the entire land folio. So, splitting the folio does not remove the right of way from the rest of the Folio. So here, the idea of splitting the folio does not achieve what you want it to achieve, namely that the rights of way would only affect this new small Folio which is the roadway. I know that might seem funny to a layperson, but that is what the situation would be subsequently. These rights of way would not be split off into this new Folio you create which is just the roadway.
Buachaill and 3 other Law Specialists are ready to help you
Customer: replied 1 year ago.

Hi,

just typed a response and lost it on sending so will try again!

thanks for your response.

in my mind the new folio would be the garden and i'd leave the roadway in the original folio.

so to give an example if i had a folio containing a road and a garden and the row is clearly defined as only on the road. i split this to produce a new folio containing just the garden, does teh right of way have to appear in that even though it does not apply to that piece of land?

my assumption has always been not which may be wrong.

That being the case can we not use the splitting of the deed to clarify the extent of the row? even if it is to remain on each folio?

Expert:  Buachaill replied 1 year ago.
2. I am afraid your assumption is wrong. The right of way over the roadway will continue to appear on the "new" folio you have created and not just on the "old" folio which contains the roadway. Secondly, there is no such thing in law of "clarifying" the extent of the row. You are just left with what is there and what is on the Folio. Unless you want to offer money to the holders of the right of way to "clarify" the row.
Expert:  Buachaill replied 1 year ago.
3. Be aware that once you go seeking to change what is there, that people will appear who will believe you should enrich them if you want change.
Customer: replied 1 year ago.

understood and wise words i'm sure!

my ultimate aim with all this was to clarify my position and in the absence of that might i be able to insure myself against future issues with an indemnity policy? the verge has been fenced off for 5 years without complaint and it was impassable for at least 40 years before that. is this the sort of thing they would look at or does the existence of the (albeit undefined) rights of way on the deeds render that unlikely?

There is an additional side issue that comes with this. i understand that one of the residents of the private road will soon register a prescriptive easement for long use of the private road.

this is perfectly fair but i would want it defined as not over the verge, just along the road. can i insist on this when LR approach me about the prescriptive easement?

thanks again

paul

Expert:  Buachaill replied 1 year ago.
4. Yes, potentially, you can insure yourself with an indemnity policy. However, this will not cover all eventualities. It will merely cover the defect in title. Secondly, in pricing the risk, there will be no minute examination of the facts and what undefined rights there might be. The risk will be priced by the indemnity insurers based on actuarial calculations over many claims. Not an examination of your situation.
Expert:  Buachaill replied 1 year ago.
5. Additionally, when the Land Registry approach you about the registration of a prescriptive easement, you will not be able to "insist" on anything. YOu will merely be given the opportunity to make representations about the registration being sought. Nothing more. It is not a legal process. You cannot then start making representations about your own situation.
Customer: replied 1 year ago.

insist was too heavy a word, i realise that that is not how it would work - sorry.

i would want to say "i have no objection to this easement being registered against my title but the long use has occurred over a defined part of the land and i would like this to be defined within the easement"

i'd give them more details and evidence to show where the to and fro would clearly have taken place but am i then in the hands of LR and they can decide that the argument has no merit and just register the easement? in the eventuality that they decide my argument has no merit can i appeal?

in terms of being insured you mentioned that an indemnity wouldn't cover all eventualities and they don't look at individual deeds. its a very statistical process if they don't look at deeds but i did always wonder how they were only £150! so what, typically, does an indemnity cover? i realise that most people are in the position of protecting a right of way with an indemnity but i'm wanting to protect myself against someone claiming the right to exercise one

Expert:  Buachaill replied 1 year ago.
6. I have tried to explain to you that the Land Registry process is not like a court. It is not somewhere you go for relief. As I stated "you cannot then start making representations about your own situation". You seem to have the wrong end of the stick here. You have no right of appeal, as it is not a legal process. Nor do you have any remedy to get them to change what is being submitted.
Expert:  Buachaill replied 1 year ago.
7. If you want these issues ventilated, then you need to litigate in a court of law.
Customer: replied 1 year ago.
So anyone can register an easement against a deed even if the grounds are questionable?
Expert:  Buachaill replied 1 year ago.
8. If the landowners object, then the person seeking the prescriptive easement will have to litigate to get it registered. It is in the crucible of litigation that these flaws get ironed out. The land Registry has powers, but they do not amount to redrawing an application for a easement.
Expert:  Buachaill replied 1 year ago.
9. I would also suggest you ask a different question about this easement, as things get woefully complicated if you ask Qstions about several different issues. Please RATE the Answer as unless you rate the answer, your Expert gets none of the monies you have paid the website.
Customer: replied 1 year ago.

Is there a middle ground there? can i say in a response to LR that i object but would accept a re-sbmitted registration on the basis of a plan with the row defined?

i suspect that the applicants would withdraw after an objection as they are mainly concerned with getting the row registered against the main title from which we purchased the verge (and tiny sliver of the road) I just want to be clear on the process and what i can do to protect my title against unnecessary registrations

Expert:  Buachaill replied 1 year ago.
10. Dear *****, You can say anything you want! However, that does not mean that it will be accepted. However, it is not an adjudicatory process where you make submissions which are then adjudicated on. It is a simple issue as to whether the rights sought will be registered or not. However, you can use your arguments to seek to negotiate with the applicant and see if the applicant will re-submit plans for registration that suit you.
Customer: replied 1 year ago.

"It is a simple issue as to whether the rights sought will be registered or not." this is the crux of my query i think. is it a simple yes or no from LR?

if i object can they overrule me? if i object do we go straight to litigation if they wish to continue or is there an opportunity to negotiate between the two parties? if so is that outside the LR registration process or do i have to knock on their door?

Is it possible to just explain the mechanics of a registration?

Expert:  Buachaill replied 1 year ago.
11. (a) It is a simple yes or no from the LR.
(b) they can overrule you if you object.
(c) you can negotiate at any time.
(d) this negotiation is outside the LR process.
(e) I would suggest you ask a fresh question if you want an explanation of the registration process.