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  • FIRST POST
    • Marine_life
    • By Marine_life 19th Jan 18, 3:02 PM
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    Marine_life
    Access dilemma and (potential) dispute with neighbour
    • #1
    • 19th Jan 18, 3:02 PM
    Access dilemma and (potential) dispute with neighbour 19th Jan 18 at 3:02 PM
    Our house was built around 10 years ago, one of two that were built privately by a local builder.

    We have just uncovered an old agreement which states that there is a right for both owners to build a new access to the site from an adjoining road. Were that new access to be built then it would mainly impact on our property reducing what is already a relatively small garden..

    The properties are both now well established (i.e. gardens with trees) and a different access was built presumably because the access which is the subject of the agreement would have been prohibitively expensive (as it would be a steep access and would require concrete walls to protect neighboring properties).

    The agreement states that if the access is built then the parties would share the costs equally.

    We were not aware of the agreement when we bought the house (but that's another story).

    We now want to sell our house which is complicated by this agreement and we want to have it effectively annulled. Our neighbor is being awkward and does not want to sign as they say the right to put in the drive might have a positive benefit for the value of their property (it might but the potential benefit would be offset by the cost of building it).

    We believe the agreement is unenforceable as:

    1. The existing access is perfectly adequate.
    2. We would never agree to have the access put in.
    3. We would never agree to pay half the costs.


    We are planning to visit a solicitor but before we start incurring costs I would like to know if anyone has any smart ideas on where we stand and what we might do.
    Money won't buy you happiness....but I have rarely if ever been in a situation where more money made things worse!
Page 1
    • Tom99
    • By Tom99 19th Jan 18, 3:11 PM
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    Tom99
    • #2
    • 19th Jan 18, 3:11 PM
    • #2
    • 19th Jan 18, 3:11 PM
    Does the agreement say both parties have to agree before the access can be built? If so I can't see you have a problem.

    However if the agreement says your neighbour can force the access to be built without your agreement I can see it would be a problem.

    Who's land would the access be built on?
    • Marine_life
    • By Marine_life 19th Jan 18, 3:22 PM
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    Marine_life
    • #3
    • 19th Jan 18, 3:22 PM
    • #3
    • 19th Jan 18, 3:22 PM
    Does the agreement say both parties have to agree before the access can be built? If so I can't see you have a problem.
    Originally posted by Tom99


    It does not say the parties have to agree. I believe any objection on our part would be the same as for a normal planning application (there are no detailed plans in the agreement)

    Who's land would the access be built on?
    Originally posted by Tom99
    Primarily on ours as it would eat into our garden
    Money won't buy you happiness....but I have rarely if ever been in a situation where more money made things worse!
    • moneyistooshorttomention
    • By moneyistooshorttomention 19th Jan 18, 3:25 PM
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    moneyistooshorttomention
    • #4
    • 19th Jan 18, 3:25 PM
    • #4
    • 19th Jan 18, 3:25 PM
    So - am I right in thinking it looks the protection your property has is that the owner of your property could refuse to share the costs and tell the neighbour "You want it = you pay 100% of the costs. Because I can say what happens about that - and I won't be paying anything".?

    I'm wondering if this might be resolved by waiting 10 years?/12 years? and then maybe Land Registry requirements (re things like adverse possession and similar) would mean that the way things currently are is "set in stone" and would override what duff developer put down in the agreement?
    Last edited by moneyistooshorttomention; 19-01-2018 at 3:27 PM.
    Never doubt that a small group of people can change the world.

    It's the only thing that ever has.
    • Marine_life
    • By Marine_life 19th Jan 18, 3:38 PM
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    Marine_life
    • #5
    • 19th Jan 18, 3:38 PM
    • #5
    • 19th Jan 18, 3:38 PM
    So - am I right in thinking it looks the protection your property has is that the owner of your property could refuse to share the costs and tell the neighbour "You want it = you pay 100% of the costs. Because I can say what happens about that - and I won't be paying anything".?
    Originally posted by moneyistooshorttomention
    I think so yes - the agreement states that any dispute should be settled in court - but i think thats the gist of it. However, the point is that I don't think anyone has any intention of ever building the access and our neighbour is just being a bit bloody minded.

    I'm wondering if this might be resolved by waiting 10 years?/12 years? and then maybe Land Registry requirements (re things like adverse possession and similar) would mean that the way things currently are is "set in stone" and would override what duff developer put down in the agreement?
    Originally posted by moneyistooshorttomention
    Thats possible and its one angle we may explore with the solicitor.
    Money won't buy you happiness....but I have rarely if ever been in a situation where more money made things worse!
    • elsien
    • By elsien 19th Jan 18, 3:43 PM
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    elsien
    • #6
    • 19th Jan 18, 3:43 PM
    • #6
    • 19th Jan 18, 3:43 PM
    Pay them off? I get why you wouldn't want to but if you can agree a sum then as a last resort it might be cheaper in the long run plus allow you to sell your house.
    All shall be well, and all shall be well, and all manner of things shall be well.

    Pedant alert - it's could have, not could of.
    • moneyistooshorttomention
    • By moneyistooshorttomention 19th Jan 18, 4:05 PM
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    moneyistooshorttomention
    • #7
    • 19th Jan 18, 4:05 PM
    • #7
    • 19th Jan 18, 4:05 PM
    Pay them off? I get why you wouldn't want to but if you can agree a sum then as a last resort it might be cheaper in the long run plus allow you to sell your house.
    Originally posted by elsien
    It's my suspicion that that is what the neighbour may be after - ie a pay-off to stop being awkward.

    Hence - I'd be checking my rights re the length of time I'd had to own my house to be sure that daft clauses like that couldnt apply any longer.

    Personally - if I had to wait another year or two to ensure I was covered against the neighbour - then I'd do that sooner than give them the payoff I suspect they're after.

    But we don't know whether OP has enough time to be able to "wait it out" to go through any "time barrier" there is - they may have the time/they may not have the time to.

    I'm betting the neighbour thinks they havent got the time to...
    Never doubt that a small group of people can change the world.

    It's the only thing that ever has.
    • Davesnave
    • By Davesnave 19th Jan 18, 4:09 PM
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    Davesnave
    • #8
    • 19th Jan 18, 4:09 PM
    • #8
    • 19th Jan 18, 4:09 PM
    The way you have spoken about the contents of the agreement doesn't suggest you have a right to refuse paying 50% of the costs.

    If this is the case, then whether anyone else would put the money up front and go ahead is irrelevant; the agreement effectively puts a potential charge on the property and would make a sale difficult.

    I think you might have to negotiate with your neighbour in order to find the simplest way out, but it would certainly be worth running the matter past a solicitor before you take any action. Sometimes agreements are badly worded.

    Also, if this agreement was not brought to your attention when you purchased, how were you made party to it?
    Last edited by Davesnave; 19-01-2018 at 4:16 PM.
    A garden is never so good as it will be next year....
    • Davesnave
    • By Davesnave 19th Jan 18, 4:12 PM
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    Davesnave
    • #9
    • 19th Jan 18, 4:12 PM
    • #9
    • 19th Jan 18, 4:12 PM

    I'm wondering if this might be resolved by waiting 10 years?/12 years? and then maybe Land Registry requirements (re things like adverse possession and similar) would mean that the way things currently are is "set in stone" and would override what duff developer put down in the agreement?
    Originally posted by moneyistooshorttomention
    And I'm wondering where you get the idea that this agreement is in some way time-limited!

    I wouldn't give the OP false hope just because you want this to be true. Where does adverse possession enter into it?
    A garden is never so good as it will be next year....
    • Marine_life
    • By Marine_life 19th Jan 18, 4:21 PM
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    Marine_life
    Pay them off?
    Originally posted by elsien
    That's in our range of options - as we will be in the position of having two homes then we are having the pay the stamp duty surcharge which effectively gives us 36 months to resolve in order to get the money back.
    Money won't buy you happiness....but I have rarely if ever been in a situation where more money made things worse!
    • moneyistooshorttomention
    • By moneyistooshorttomention 19th Jan 18, 4:26 PM
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    moneyistooshorttomention
    And I'm wondering where you get the idea that this agreement is in some way time-limited!

    I wouldn't give the OP false hope just because you want this to be true. Where does adverse possession enter into it?
    Originally posted by Davesnave
    Things like the question in the house-buying form about whether boundaries have been changed during last 20 years on the one hand. That legal doctrine (can't recall the terminology) that seems to be basically to the effect of "If you've spent time/good money using your home on the basis of the way it is now - then it stays that way - even if it wasnt meant to be that way in the first place iyswim".

    Hence I'm wondering if something like this applies.

    Always worth tossing ideas into the mix as to what might be possible and OP has some ideas in their mind of what questions to ask a solicitor - in this case on the topic of preventing the neighbour grabbing some of their garden for a drive for themselves.
    Never doubt that a small group of people can change the world.

    It's the only thing that ever has.
    • Marine_life
    • By Marine_life 19th Jan 18, 4:27 PM
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    Marine_life
    The way you have spoken about the contents of the agreement doesn't suggest you have a right to refuse paying 50% of the costs.

    If this is the case, then whether anyone else would put the money up front and go ahead is irrelevant; the agreement effectively puts a potential charge on the property and would make a sale difficult.
    Originally posted by Davesnave
    You're right it is completely silent on that - but (a) there is a presumption that we have the money; and (b) there is nothing in the agreement at all about how the process should play out (planning permission, getting quotes etc.) i.e. it seems like the agreement was some sort of weird afterthought and as a result there is very little precision.


    I think you might have to negotiate with your neighbour in order to find the simplest way out, but it would certainly be worth running the matter past a solicitor before you take any action. Sometimes agreements are badly worded..
    Originally posted by Davesnave
    Agree.

    Also, if this agreement was not brought to your attention when you purchased, how were you made party to it?
    Originally posted by Davesnave
    The agreement is worded such that it applies to the original signatories and any other future owners.
    Money won't buy you happiness....but I have rarely if ever been in a situation where more money made things worse!
    • Marine_life
    • By Marine_life 19th Jan 18, 4:29 PM
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    Marine_life
    Things like the question in the house-buying form about whether boundaries have been changed during last 20 years on the one hand. That legal doctrine (can't recall the terminology) that seems to be basically to the effect of "If you've spent time/good money using your home on the basis of the way it is now - then it stays that way - even if it wasnt meant to be that way in the first place iyswim".

    Hence I'm wondering if something like this applies.

    Always worth tossing ideas into the mix as to what might be possible and OP has some ideas in their mind of what questions to ask a solicitor - in this case on the topic of preventing the neighbour grabbing some of their garden for a drive for themselves.
    Originally posted by moneyistooshorttomention
    Thanks - and that's certainly the case - the way the properties are used has now been established for 10 years.

    As I say, its clear that there is no intention whatsoever to seek to apply clause but our neighbour believe it has a value to his property i.e. I think he is angling for a bung.
    Money won't buy you happiness....but I have rarely if ever been in a situation where more money made things worse!
    • cloo
    • By cloo 19th Jan 18, 4:32 PM
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    cloo
    As I always say with things like this, it may be worth going to a property mediator about this to come to a solution if things seem entrenched. Mediation is not too expensive and it has a very high success rate.
    • ProDave
    • By ProDave 19th Jan 18, 5:29 PM
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    ProDave
    Don't forget, any new access onto the public road would first require planning permission and highways approval.

    It might be worth searching your councils website to find the planning application for these houses and see if this "proposed" access was shown on the plans, or just the alternative access that was actually built.
    • Davesnave
    • By Davesnave 19th Jan 18, 5:33 PM
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    Davesnave
    The agreement is worded such that it applies to the original signatories and any other future owners.
    Originally posted by Marine_life
    Clauses such as this always are though, which is why your solicitor should have pointed it out.

    Looking at it from your neighbour's POV, it's maybe not such a great agreement for them either, if someone with different priorities from yours came to live next door. In theory, they too could end up with an unwanted cost.

    Removing things like this isn't difficult if all can agree. With our last purchase, our solicitor picked up that we were tied to a neighbour for drainage purposes, which she felt was not in either party's best interests, long term. The neighbour agreed, so the clause was removed.

    As you say, there may be practical considerations too which could limit the power of the agreement, such as an outright refusal from Highways Dept to allow such an entrance. This would obviously impact on it's 'worth' to the neighbour as a bargaining chip.

    Many avenues to explore, but I'd start with the wording to see if it's badly drafted.
    A garden is never so good as it will be next year....
    • Winter Phoenix
    • By Winter Phoenix 19th Jan 18, 7:00 PM
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    Winter Phoenix
    Present it as a positive to any potential buyer, rather than as a negative.

    'If you and the neighbours ever wanted to move the driveway, the agreement is already in place.'
    e cineribus resurgam
    ("From the ashes I shall arise.")
    • moneyistooshorttomention
    • By moneyistooshorttomention 19th Jan 18, 7:11 PM
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    moneyistooshorttomention
    "Reducing what is already a relatively small garden" is the phrase I noticed in the original post.

    I didnt spot any comment about a new driveway would be "instead of existing driveway"???

    ********

    I do agree it's worth checking out whether the Council would even give any consideration to giving planning permission anyway. You may well get lucky and find it's already "game, set and match" to you - as they wouldnt. Fingers crossed that you're in a standard area - rather than one where sometimes things get passed that shouldnt be (and wouldnt for anyone else.....) if the person concerned is a "local". But I imagine that doesnt apply and decisions would be objective/fair.
    Last edited by moneyistooshorttomention; 19-01-2018 at 7:14 PM.
    Never doubt that a small group of people can change the world.

    It's the only thing that ever has.
    • Marine_life
    • By Marine_life 7th Jul 18, 10:19 PM
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    Marine_life
    This has moved on and it's really a good lesson to everyone to check legal documents when they buy a house especially when there is a shared driveway.

    So ....to recap...we have the following situation:

    1. Our house is side-by-side with another identical house.
    2. There is a driveway between the houses which provides access to both houses garages.
    3. There is (unbeknownst to us) a right to build another access point to the houses that would mostly cross our land.
    4. Nobody has any intention of building the alternate access but without this right being removed we cannot sell our property.
    5. The neighbour refuses to have the access right removed.

    We are now taking legal advice as our neighbour effectively requested 100,000 to have the right removed (our house is worth about 500k so of course, we have refused.) Meanwhile, there have been some interesting developments.

    1. We now have a letter from the council which says they would not approve any additional access as the existing access is adequate. Unfortunately, this in itself does not allow us to have the legal right of way removed (I assume because a future council might allow it).
    2. We have realised that the current driveway sits on our land -the "shared driveway" sits between the houses and there is a 10-meter gap between the houses. Our neighbour has built steps and a small garden on "their" side of the shared driveway (which had never been a problem before we bought our house as previously both houses were owned by a brother and sister). So....our solicitor will now look to enforce the rights we have to our land and we will effectively close off "our" driveway to our neighbour legally (and if necessary physically) - this would be massively inconvenient as it would cut-off access to their garage without an expensive amount of building work. I hate doing this but I can see no other way of moving the discussion on (our neighbour refuses to have a civilised discussion).

    Feel free to throw any thoughts here.
    Money won't buy you happiness....but I have rarely if ever been in a situation where more money made things worse!
    • Slinky
    • By Slinky 7th Jul 18, 10:28 PM
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    Slinky
    No advice Marine but it looks like your neighbour has sown the wind and is about to reap your whirlwind. Good luck to you.
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