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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 10395
Experience:  I have been practising for 30 years.
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I have a case management.conference hearing this Friday. it

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I have a case management.conference hearing this Friday. it is a case against my neighbouring petrol station who expanded building over our right of way/easement. It as been a long dispute basically because the station owner ignored us for the first couple of years. We agreed to have the right of way relocated but what we have been left with is dangerous and un-registered. We originally claimed for the owner to register the drive and £50,000 cost and damages due to devaluing our homes. For some reason along the way my solicitor dropped our claim for damages and agreed to the following proposal: they will enter into a deed of easement and register the new drive as a two way right of way unless objected to by a local authority. If any objection is received then we will have to use the drive as it is now which is entering along a single tarmacked road and exiting across the petrol station forecourt. This is what I have taken action against in the first place. I told the owner that we must not have to cross the forecourt and that emergency vehicles should be able to access our homes. He as ignored both my requests. Finally I have come to my questions after giving you some background into my case. Firstly before I decide whether to drop the case and agree to a Tomlin order which only favours the station owner, am I right in believing that I am within my rights to demand a right of way which is as useable/adequate as the one we had before?
I feel totally let down by my solicitor, he is weak and as let the other solicitor dictate to us to the extent of dropping our claim for damages without our consent. We had a meeting with the station owner and his solicitor and he hardly spoke a word.
At this stage, two days before the CMC can I do anything to postpone the hearing so I can change my solicitor.
I would appreciate it if you could give me a definite answer to the question of demanding a adequate right of way if possible because it would allow me to decide whether to proceed to court or not.

It is unlikely that at this late stage you would be able to postpone this purely to take different legal advice.

You are correct that you are able to demand a right-of-way which was as usable and adequate as the one you had before although in actual fact, you are able to demand the original one back although, if you stood by and watched the expansion go ahead without applying to court for an injunction to stop that in mid build, it’s unlikely that the court would order the original one reinstated unless as a result of that, it was now impossible for you to get to your property.

There is always a risk in going to court and unless you have after the event insurance (which you don’t mention) there is always the risk that you could have caught and solicitors costs awarded against you if your action is not successful.

Can I clarify anything for you? Please rate the service positive so that I get paid. We can still exchange emails. Best wishes. FES.

Customer: replied 1 year ago.
Can I demand that the easement be registered so I can put in on my deeds. Does he legally have to register it
Customer: replied 1 year ago.
Also what if the right of way is dangerous can I refuse the right of way on safety grounds.our original right of way was much bigger, better and safer

I think it’s essential that the easement is registered on the deeds otherwise you only have his agreement that there is an email easement, you don’t have a legal easement and that would be problematical if ever you came to sell.

However it isn’t registered so that you can put it on your deeds: it gets registered on his deeds and registered on your deeds. He should be responsible for the cost of that because none of this is of your making.

I think safety grounds was the a good reason for him to make the new easement bigger or better or more satisfactory than what is on offer in some way and for it to be at least as good as the old one

Customer: replied 1 year ago.
it's would be a good point go make in court that the easement is dangerous

Yes but I think it’s essential that the observation comes in writing from a third party who is qualified to comment on that.

Customer: replied 1 year ago.
OK now I just need to decide whether to take risk in court or not
Thank you

That has to be your decision I’m afraid based of course upon your evidence and the other side’s evidence. Nothing is ever cut and dried or guaranteed in litigation.

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