Taking legal action against property developer

da_rule

You could start getting him to contribute towards the road so that it can be properly maintained?

Is there any land to the side of the land where a passing point/lay-by could be constructed? Yes, this would be expensive and may require planning etc but it is a potential, practical solution.

Also, did the shop owner submit the plans do you know? As you say that the plans state that loading happens via the forecourt. Maybe a gentle reminder that he is in breach here, but it is essentially unenforceable as the rights granted by the title would take precedence. But it might worry him enough to make him comply.

Cakeguts

Gorideb4 wrote: »

Ok this part of the deeds prevents me challenging them:

Rights reserved

There are reserved out of the property for the benefit of the whole and every part of the retained land of the following tighten favour of the transferor the owner or owners for the time being of the Retained land and any part or parts of that land intended to be benefited and all other part sons having the like right or so,liar rights a right of way over and along the estate road at all times and for all purposes for the benefit of the retained land and every part thereof subje t to the tranferor paying one sixth or such other fair proportion according to user of the cost of the maintenance and upkeep of that part of the Estate road as may be reasonably required by the Transferee (but not so as to place any liability to the Tranferor to contribute towards the cost of constructing the Estate road of subsequently upgrading the same.

Apart from selling up does anyone have any recommendations for other ways to deal with this? Remembering I have previously tried on many occasions to deal with this diplomatically, citing safety concerns etc....

Feel really annoyed we were not told about any of this before buying.

Yes but when this was written the road to the houses didn't exist did it? So the estate road in these deeds must be a different road not the one they are using because that didn't exist.

Gorideb4

da_rule wrote: »

You could start getting him to contribute towards the road so that it can be properly maintained?

We could but seems a little unfair that they only pay an equal share not proportionate.

Is there any land to the side of the land where a passing point/lay-by could be constructed? Yes, this would be expensive and may require planning etc but it is a potential, practical solution.

Yes this could be an option and we can explore it depending on appetite from neighbours

Also, did the shop owner submit the plans do you know? As you say that the plans state that loading happens via the forecourt. Maybe a gentle reminder that he is in breach here, but it is essentially unenforceable as the rights granted by the title would take precedence. But it might worry him enough to make him comply.

No the shop keeper did not submit plans, the previous owner did. With regards to their legal position I'm pretty sure they are aware of it as they have verbally quoted some of it to me

The thing is that we are prepared to cut our loses and walk away but obviously will need to inform the new owners of the situation. We weren't given that luxury though!

Thrugelmir

Gorideb4 wrote: »

Feel really annoyed we were not told about any of this before buying.

Onus is on buyers to consider matters fully and initiate their own enquiries too. Not just sit back and expect others to cover ever single eventuality on their behalf.

Gorideb4

Cakeguts wrote: »

Yes but when this was written the road to the houses didn't exist did it? So the estate road in these deeds must be a different road not the one they are using because that didn't exist.

Yes pretty certain you are right but would have to do some digging on this. Certainly the copy I have from the land registry is dated mid 2011. I didn't move into the house until early 2013 but the property had sat empty for nearly a year. The access plan in these deeds are an architects sketch showing the proposed new site.

da_rule

Gorideb4 wrote: »

Yes pretty certain you are right but would have to do some digging on this. Certainly the copy I have from the land registry is dated mid 2011. I didn't move into the house until early 2013 but the property had sat empty for nearly a year. The access plan in these deeds are an architects sketch showing the proposed new site.

Hold on, earlier, didn't you say that this was added to the deeds as an amendment around the time of the development?

Gorideb4

Thrugelmir wrote: »

Onus is on buyers to consider matters fully and initiate their own enquiries too. Not just sit back and expect others to cover ever single eventuality on their behalf.

Point taken

Cakeguts

If the previous owner submitted the plans and got the access then the access that they got cannot be the road to the houses because that did not exist then. What other access might this apply to? Could it apply to the forecourt if the land was being divided?

You will need to have a look at the plans before the houses were built and see if there is an access already in place that could be needed to be protected.

People assume that what they see on the ground when they buy is what is meant in the deeds. I know of an example where someone bought a cottage that had a right of access through the back gardens. What this person didn't know when the neighbours complained about them going through the gardens was that a road had been built at the back of the cottages and so what was the back now looked like the front. The buyers just assumed that what looked like the gardens at the back of the cottages were back gardens whereas in reality the gardens were at the front. So yes they did have access over the public road at the back but not over the gardens at the front. It wasn't what it looked like.

da_rule

Gorideb4 wrote: »

The deed I quoted was taken from an addendum on the deeds, this addition is dated around the time when the land was split in two. It also has an up to date site plan with the new housing on. The current owners bought the shop whilst the new houses were being built.

So the estate road did exist (or was under construction) at the time the relevant covenant was placed on the title, it was added as an addendum in order to both grant rights to the new development and retain rights over the road.

Cakeguts

I still think it would be worth trying to get the timings right because if the houses were still being built when the new owners bought the shop there is no proof that the access road was the same road as is there now.