Deeds Interpretation: can anyone help? please?

**des8** · 25th January 2015, 10:59:AM

Re: Deeds Interpretation: can anyone help? please?

Hi and welcome to LB.
Is this just an "in principle" question. or are you having practical problems?

Regardless of your deeds (and IMO you have the right to access for repair/ maintenance of sewers etc etc) you can obtain access under the Access to Neighbouring Land Act 1992.
This gives more rights than those from your deeds.

However, surely a polite chat with your neighbour would be more appropriate.

**pampampam** · 26th January 2015, 13:35:PM

Re: Deeds Interpretation: can anyone help? please?

Dear Des8
Thanks for your response, however, I am afraid we are long past the polite chat with the neighbour I'm afraid.
We have damp problems in first/second [loft conversion] floors and notified neighbour in Oct, then Nov, and Dec and finally Jan that we needed to fix this which would necessitate erecting scaffolding on their land [the alleyway between our two houses - of which we have RoW]. This was refused. Weather has got progressively worse and as we are having work done at the rear anyway our intention was to erect scaffolding on the side [alleyway] at the same time as it goes up in the rear [well you would wouldn't you? get it all done at the same time!] Anyway this all stems from our getting 2 x separate planning applications passed. Huge objection to the first on ridiculous grounds which the council quite rightly ignored, we think this is where the awkwardness and vindictiveness is coming from!
So when the scaffolding was refused, we advised we had rights under Access to Neighbouring Land Act 1992 and gave notice. My interpretation is that we have the right and if the neighbour refuses TO PROVIDE ACCESS then we go to court to get an injunction, but as we have access anyway [it's not the back garden for example which we couldn't legitimately reach] we've gone ahead and erected it.
They gave us 2 days to remove it [last Friday] otherwise they have said they will get a court order and we will be liable for all costs.
Scaffolding will only be up two weeks maximum. So then in examining our deeds, I thought I had come across a right anyway, to access at all times, repairs, but the wording is so archaic [and open to interpretation] I could of course be very wrong. Hence the post.
Any advice gratefully received.
Thanks

**des8** · 26th January 2015, 14:07:PM

Re: Deeds Interpretation: can anyone help? please?

Your deeds only give the right to access for " inspecting repairing or replacing any sewers drains watercourses pipes cables and wires ".

Yes they could apply for an emergency injunction to have the scaffolding removed and this could be granted within 24 hours.
Realistically it will take days, and the granting of an injunction is discretionary
You may have a right of way over the land, but you do not have access for the purpose of erecting scaffolding. Technically you needed a court order, and so now are trespassing.
.It is most likely that you will be given a chance to defend your actions, and an injunction may not be granted.
Even if they do obtain an injunction, it may not require immediate removal of the scaffolding (allowing you to complete your works) and any compensation award is likely to be minimal (assuming no damage has been done to neighbouring property).

**pampampam** · 26th January 2015, 14:46:PM

Re: Deeds Interpretation: can anyone help? please?

That was a quick response - many thanks!

I was rather hoping that the wording which referred to watercourses [a channel for water - could that be interpreted as guttering?] or would pipes better describe guttering? If so this would include the guttering at high level which we think may be a contributory factor to the damp? Which by the way they have given notice that it is 'invading their airborne space'. Bit rich given it was there before we moved in 20 years ago! They also gave us 2 weeks' notice to get that removed as well - and again we wouldn't have been able to reach it without scaffolding anyway!

If they apply for an injunction do they have to disclose the reasons why we went ahead and put it up - for repairs etc? and if so will the court look at this pragmatically and think that had I applied for a court order to GAIN access [again I interpreted it as I didn't need to gain access as the alleyway is open and not closed off or gated by them at all - then it would have been granted as we do need to sort out this damp, looking not only at the guttering but the dormer roof. I do have evidence too of another firm quoting for the job earlier and they too required scaffolding to go up - it was just we thought we would wait and do all the works together.

No damage caused to alleyway - scaffolding is not touching their property, kept clean and swept each evening. They are at work in the day - go before the workmen come and come home after they've left.

Obviously we are not now exchanging Christmas cards!
Thanks

**des8** · 26th January 2015, 15:14:PM

Re: Deeds Interpretation: can anyone help? please?

"water courses laid UNDER the properties" hardly applies to guttering 10m up

Re the overhang: if you can show the gutters were there before 1990 (?) you probably can get adverse possession, if for 20 years you might have a prescriptive right.
Land registry link:https://www.gov.uk/government/public...y-prescription

I would be inclined to continue with the works (you said two weeks max), ask the builders to work fast (bonus for early completion?) and hope to finish before the neighbours get to court.
As the scaffolding is up, you don't want to dismantle until you have completed the job.
Most likely you will be able to oppose any request for an injunction, so the works could be completed before any hearing.
Are they actually likely to go to court? have they engaged a solicitor?

**pampampam** · 26th January 2015, 16:20:PM

Re: Deeds Interpretation: can anyone help? please?

Originally posted by des8 View Post

"water courses laid UNDER the properties" hardly applies to guttering 10m up

Re the overhang: if you can show the gutters were there before 1990 (?) you probably can get adverse possession, if for 20 years you might have a prescriptive right.
Land registry link:https://www.gov.uk/government/public...y-prescription

I would be inclined to continue with the works (you said two weeks max), ask the builders to work fast (bonus for early completion?) and hope to finish before the neighbours get to court.
As the scaffolding is up, you don't want to dismantle until you have completed the job.
Most likely you will be able to oppose any request for an injunction, so the works could be completed before any hearing.
Are they actually likely to go to court? have they engaged a solicitor?

Oh no - I'm so tired I didn't read the UNDER the properties! Darn. I thought I'd found an excellent justification! Can't believe I've done that - looked at it so many times!

So back to the ATNLA then it is. Thanks for the link by the way - will look at that next.

Yes - they've just sent a sol's letter saying have two days to remove scaffolding or they are going to issue injunctive proceedings and get a court order to get the scaffolding removed and that I have to pay damages in respect of the trespass to date. They will also seek any legal costs back from me, even if the scaffolding has gone before the case goes to court They do say that I can set out proposals for seeking a licence for the scaffolding and if acceptable the clients will enter into a licence. but if not acceptable clients will reject and require the scaffolding to be removed in 24 hours. However, if they wanted a licence they should have said at the beginning. Clearly they are jerking our chain, we draw up a licence and they refuse and we have to remove. Surely it would be better if they said - here's a licence, sign it and we're good. but obviously they don't want to - they just want to put us to more trouble.

Would it be best to ignore given that it will take time for them to get an injunction by which time the scaffolding will be down?
Thanking you

**des8** · 26th January 2015, 17:13:PM

Re: Deeds Interpretation: can anyone help? please?

As they have said they will consider proposals for a licence for the scaffolding, I would suggest a letter to their solicitor agreeing to this way forward.
Be conciliatory and explain you will be instructing a chartered surveyor to draw up a licence.
By the time you have appointed the surveyor, had a suitable document drawn up and delivered to neighbours solicitor, who then has to refer to his client before further discussions take place............. hopefully the scaffolding will be down.

**pampampam** · 28th January 2015, 19:46:PM

Re: Deeds Interpretation: can anyone help? please?

Thanks for this, latest development is, their solicitors have said the want £450 per week, backdated! And they are consulting their own surveyor to draw up an license and I will have to agree to this and meeting their costs otherwise they are going to take out a court injunction!!! Is it reasonable to charge so much?

This has been rumbling on since November and stems from the fact that they weren't able to object to our extension and we got PP. They delayed the PWA process delaying our build and causing us to lay off the builders. When their surveyor [of course they didn't want our one so went as the AO for one miles away!] was here for the inspection - the damp problem was very clearly pointed out to him and the builder said that he would need proper scaffolding to access the loft conversion flank wall and the surveyor said this would be addressed in the award. When it finally arrived of course it wasn't in. We queried this and he said this was outwit the PWA. The AO said they would instruct him to draw up a license but then we heard nothing since. Probably he's their friend and this was another way of squeezing some more cash out of us. We feel they are being deliberately awkward. Can we apply for a retrospective court order under ATNLA? to counteract their proposed order. I feel they have conspired with the PW surveyor to delay things. I can't understand why they are acting this way.

Very stressed.
Grateful for any advice.

**des8** · 28th January 2015, 22:51:PM

Re: Deeds Interpretation: can anyone help? please?

Well, if I was in your position (and I'm not suggesting you follow) I would be reviewing matters pragmatically.
i) you need to maintain your property
ii) to do i) you need scaffolding
iii) you have scaffolding erected
iv) why dismantle scaffolding, when eventually you will have to re erect it
v) neighbour wants shed loads of wonga for you to keep scaffolding
vi) if you don't agree and pay up he threatens to get an injunction and sue for trespass

Now if you drag matters out (ask for copy of proposed licence "in order to have it checked by your own solicitor" you should get matters delayed through to next week.
If the neighbours were then to try and obtain an injunction it would take time.
I believe you'd get the opportunity to oppose it so it would take a few days before it got to a court hearing.and there is no certainty they would obtain the injunction.
You could complete building works before it gets to court

If you pay the licence fee it's going to cost, so you could continue to trespass.
If they sue for trespass, as there's no damage to the land, any damages would be linked to the value you obtained and could be less than the cost of the licence.

I am making it clear that am not advising you to take this course of action, but it is a course I would be considering.

**pampampam** · 28th January 2015, 23:22:PM

Re: Deeds Interpretation: can anyone help? please?

Thank you. Understood that you are not advising, merely speculating what course of action you might consider if you were in the same situation.

I'm thinking now what you're thinking....
-I will email them [they are contacting me through my email which the PWA surveyor shared with the AO who in turn has shared with her solicitor - would have thought the PWA surveyor was at fault here initially by sharing my email address with the AOs in the first place but that's a whole other matter!] and not agree explicitly to the terms they propose but advise them, seeing as they wish the license to be drawn up by a chartered surveyor] that I will be exploring this avenue myself. If I get them to send me the license for consideration/review by my 'own solicitor' then I will incur the charges for having it drawn up in the first place.
-Then I will turn my out of office on [it's my work address they've been using! I used it once with the PW surveyor as I had no option and he's shared it wider - is that a breach of DPA? So then they will have to correspond in writing I guess.
-The neighbours will then proceed with an injunction... [Am I right in thinking that this is through the small claims court? and that this process doesn't involve solicitors? - I have been on t'internet all night! - but can't seem to find a definitive process on how court injunctions are taken out so I may be confused through lack of sleep]. Or would the AO instruct the solicitors to take out an injunction on their behalf?
-Do you have to go before a court/judge to ask for an injunction? Or is it a paper based application?

Sorry for all the questions I'm trying to research this myself without success. Have been on loads of websites.

But thank you very much for responding to my post, especially at this late hour - I do appreciate it and acknowledge that you are not advising me to follow this course of action - only advising what you would do.

aw:

:doggieyes: our dog also says thank you!

**pampampam** · 29th January 2015, 00:47:AM

Re: Deeds Interpretation: can anyone help? please?

Dear Des8
Just to update you I've now found a useful link which explains the process - don't know why I couldn't find it before. Stress? Didn't want you to have to go to the trouble of responding to me on this point. I could post the link here but not sure if it's allowed as it's from a solicitor's website? [I'm not a natural law/rule breaker!] I've seen now that the letter from the solicitor is a pre-action letter - although it gave me very little time to respond? I've copied and pasted in various bits from the website in question, in case this is of assistance to others viewing this thread now or in the future.

I think therefore I will stall for time tomorrow - see how that goes and I suspect they will then jump straight to applying for the court injunction. I'm not sure that this would constitute an 'emergency' in the eyes of the court - so I imagine it would have to go through due process of two weeks by which time the scaffolding will be down. I will then rely on damages only being awarded in terms of 'damage' of which there is none. Indeed if we did cause any damage I would, even without the benefit of any legal/formal agreement, as a matter of course make amends.

I see that either the AO or their solicitors can lodge the injunction - but I'm not clear on next steps in terms of if I have to go to court to defend it whether I'm up against their solicitor [as I won't have representation] or whether it's the AO? As I'm not clear then whether this is heard in the small claims court [where it's not intended their is legal representation?] or have I got that wrong.

Anyway - thanks again for your comments - I had better go to bed as work in the morning - although I'm not getting much sleep at all.

Here are the various bits and pieces - hope it is of assistance to others.:beagle:

When is an injunction valid?
Before the injunction can begin, your antagonist must personally be handed a copy of the injunction; called "serving" the injunction. You should not serve the injunction yourself; arrange for someone else to do this for you. Therefore, an injunction is only valid when the antagonist has been served with the court order.

How do I apply?
You can (a) get a lawyer to apply on your behalf (b) go to your local County Court or Magistrates Court and ask them for forms to apply, or (c) use [Name of Solicitors] to do all the work for you.

For some injunctions you may need to apply to the High Court. Some County Courts are allowed to hear High Court cases, they are known as "District Registries of the High Court". You should check with your local County Court whether they can hear High Court cases. You may need to make a sworn statement, known as an "Affidavit", to explain why you want an injunction. (An Affidavit is a sworn statement made while in Court. You can use a statement rather than an Affidavit when applying for a common law injunction).

Some injunctions can be applied for as an emergency and your antagonist need not be at court when you apply for an injunction against them. You may have to go to Court a second time and this time your antagonist will be present to tell their side of the story to the Court. Some injunctions allow the police to arrest your antagonist if he breaks the injunction

[My note: although not for trespass!]

What forms do I need?
You will need to complete an Injunction Application (Form N16A) and a Statement of Claim (this is a written statement of exactly what you are complaining about with specific details of what has happened and who was responsible).

Do I have to get in touch with the defendant before submitting my claim to the court?
No. [Name of Solicitor!] submit a LBA (Letter Before Action) to the defendent prior to the application for injunctin to urge the defendent to alter their behaviour. Once your completed Injunction Application and Statement of Claim have been sent to your local County Court, it will be sent to the Defendant. The Defendant then has 14 days in which to respond.

What happens once my form has been accepted by the Court?
Once your completed Injunction Application and Statement of Claim have been sent to your local County Court, it will be checked by the Courts and issued to the Defendant, along with instructions on how they complete the Acknowledgement of Service documentation in response to the injunction application. The Defendant then has 14 days in which to complete this process.

The Defendant's Acknowledgement of Service will then be forwarded to you by the Courts to allow you time to provide any additional evidence or arguments in response to the Defendant's defence. You have a further 14 days in which to provide any further documentation or a written response.

Once you submit your application to the County Court, the Court will then give you a hearing date. During this hearing the judge will decide on your individual case

**des8** · 29th January 2015, 08:10:AM

Re: Deeds Interpretation: can anyone help? please?

Thanks for that.
Early (for me )morning and I'm out most of the day. Will look in again later.

**wales01man** · 29th January 2015, 08:21:AM

Re: Deeds Interpretation: can anyone help? please?

You may not like this neither would the neighbour ,but this saga is beyond belief and rather childish especially from the neighbour . I can see this ending up in a Court case with a long drawn out battle with solicitors fees out of control .
Talk of DPA and whether email addresses are given out just extends the agony the Neighbour is either a complete Ahole or has money to through away I would let them send all the threats and ignore them until it gets to a definite threat Of court action hard to believe a Judge would award a large sum of money to the other side because a few scaffold poles sat there .
The deeds may if read by an expert In this field that there is no problem .

I fully expect this to go on for a long time with no winners and one person moving away life really is to short for this hassle

**pampampam** · 29th January 2015, 08:38:AM

Re: Deeds Interpretation: can anyone help? please?

Yes I'm afraid it looks like the only winners will be the solicitors, although I will have to defend myself if it goes to Court. I've no idea what has prompted this vicious behaviour other than sour grapes re: our planning permission being granted. The considered opinion is the neighbour is a completely Ahole as you say.
I will have to let them proceed with the injunction - I presume a man in a dark suit with sunglasses knocks the door and asks "Are you so and so?" and then hands me a letter with the words "you've been served!" Or have I watched too much telly?
The deeds - Des8 has clarified let me go onto their property to effect repairs of water, pipes, sewers, etc that go under their land - and the problem is the damp in the loft.

I wonder if I ought to counter-sue for impact on delaying build, having to lay off builders etc. etc? of just wait and see whether the court issues an injunction and take it from there? If they issue an emergency injunction they surely can't demand the immediate removal of the scaffold can they? I spoke to the builders this morning and as it's interlocked - the side alley for the damp and our rear for our extension - it's not possible to take the alley scaffolding down earlier. Besides we have not yet resolved the damp problem. I think the flashings are done and the exterior coating is due on this weekend.

Yours in despair and thanks for response.
I'm not sure if I will be able to access this site until later this afternoon as I may not have access at work - though what use I'm going to be on only a few hours sleep......
thanks:tinysmile_cry_t:

Deeds Interpretation: can anyone help? please?

Deeds Interpretation: can anyone help? please?

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