Boundary Disputes (English law)

[Phyrebrat]

I have an issue in my WIP that I’d like advice on for those who understand land law (cough @The Judge ) in England.

It’s specific to boundary disputes:

Imagine a big ol’ house where a golf course backs onto it. The boundary between the golf course is clear in the Deeds but there’s no physical fence. Just patchy rhododendrons, laurels and scrub from off-the-fairway rough.

I have a situation where I want public access to a landmark inside the house’s boundary. Historically, owners have allowed access as a favour to a yearly tradition, but the present ones refuse.

Separate to this, Judge Rooke is corrupt, with a few unpleasant secrets and I’d like the POV character to blackmail him to fudge the Deeds’ boundary so that public access can be made from the golf course. (The judge is also a v influential member of the Town Council.)

What needs to happen? I’m not going to need in depth expo as this will happen off-page. My days of issue Originating Applications are long gone and tho I have a copy of The Green Book, it’s hardly user friendly (or current: 1999 I think)

Thanks.

pH

 

[The Judge]

I'll need to think about this one before coming up with a proper answer, but thoughts off the top of my head:

• if members of the public have only been allowed to the landmark by the goodwill of the owners, then it's highly unlikely any formal right to visit/see the ruins (if ruins they be) has been created, therefore the present owners can just stop it whenever they like, and there's no comeback
• if the landmark has been given to the National Trust in return for help with its upkeep, while the owners retain all else, the NT does insist on some public access but I've no idea how much and what terms are involved
• rights of way can be created by traditional use, but I'm pretty sure it needs something more than usage once a year, and it would involve crossing the land, not simply walking to a specific point and walking out again
• a RoW would allow access at all times, not simply once a year
• something's pricking my memory about resurrected RoW, which haven't been enjoyed in recent years but which nonetheless can be reinstated if evidence of them is found, but I'd have to research that if you want to know more
• I'm pretty sure there are registers of public RoW which anyone can check
• if a RoW hasn't been formally registered for whatever reason, there will still be evidence of it in old maps, especially estate maps, and if these are lodged with the local Record Office, again anyone can check them and find out where the path was/is
• if title to the land is registered, as most now is, there should be an entry about any RoW if there is one, though it's not definitive (ie there might be one which isn't mentioned), and the maps are always bloody useless
• if the land is registered, the Land Registry doesn't keep the old deeds which are returned to the owners -- in the past some solicitors have just junked them, but if they have any local history value, they would usually now be given to the local Records Office
• there would only be a boundary dispute if the owners of the property claimed part of the golf course, in which case there would again be recourse not only to the present deeds and/or Land Registry docs, but also old maps and other evidence to show the exact line of the boundary -- and there will usually be some evidence on the ground such as a ditch and bank
• I think it's possible to ask for a RoW to be re-routed so as to give greater privacy to a dwelling house, but it still has to be over the owners' land -- ie you can't ask for it to be over your neighbours' property -- which might fit in with claiming part of the golf course, but it has to be accessible land, ie they'd have to clear all the scrub so people could walk through to the landmark
• judges don't have anything like the power you seem to think! They can't change public records for a start or re-draw boundaries. The most you could hope for is a court case about the true boundary that comes before Rooke where he finds for the owners of the property despite the evidence, but he'd just be overturned on appeal
• if you want a court case, presumably the golf club would start it, claiming trespass on the part of the owners when they start grubbing up the scrub to allow access on the other side of the boundary, though I can't see why they need to pinch part of the golf course

I can't help thinking you're trying to make life too complicated here, though. If they don't want people visiting the ruins, they can just not allow access. If there's a formal RoW, they still don't have to allow access to the ruins, just a path through the grounds.

Ooh, as I'm typing, I was wondering about a clause in the deeds which states that access must be allowed to the ruins, which would bind each subsequent owner. I wonder how that might arise and whether it would be enforceable. Possibly not. Or something paid to an owner in the past by eg the town council, in consideration of a yearly pilgrimage to the ruins. That could well still be enforceable by the council, and it wouldn't necessarily specify a particular path, so the owners could site the access path where they wanted on their ground. In that case, though, why bother trying to pinch the golf course land? Why not simply have the access just inside the boundary through the scrub?

That of any help?


EDIT: wrong end of the country, but thought you'd be interested in this Boundaries in the Landscape – Banks, Ditches and Walls

Ooh, and this -- a recent Court of Appeal decision! Boundary disputes: hedge and ditch rule | Wright Hassall and Mills & Reeve | Boundaries and the hedge and ditch rule

 

[Phyrebrat]

Off the top of your head? Wow!! How big’s yer hat?!

I’ll read this now and get back to you with roses and cakes. Thanks.

It’s a lot to process!

You’re my hero

pH

 

[Phyrebrat]

I haven't read the edit links yet, will do so tomorrow, but I think I might have confused you; It's a third party (Marville Pikepepper) that wants access to the landmark (which is a protected tree) in the Sommers' back garden.

Remember me talking about Rogationtide (beating the boundaries) the other month in my blog (hint, hint, @Brian G Turner when are they comin back ? ) ? and how my parents allowed access to the celebrants of our village to our back garden? Well, In my WIP I've taken artistic licence and conflated that with Hocktide in the sense that it has evolved to a simple ritual now based on Beating the Boundary.

The Judge won't be acting legally anyway. He's corrupt. I want him to use his cabal of influential people to fudge the details at the Land Registry. How he does that I'm not too bothered about, as it's not going to happen on page, so much as be generally referred to. But I want a sense of how that could happen so I can work it in loosely as part of passable authenticity.

In addition, the plan is not successful for one reason or another and no-one ends up with access anyway. It's the one year that the ritual (this quasi-Hocktide thing) has not occured for centuries. Therefore it needs some gravity behind it.

The Judge has to be invovled - or I'd like him to be involved - as he is a side dish in the story inasmuch as his suspicious demise is reported. I was after a more overt link to the house with him, and this could work, rather than invent a new character etc.

One thing I've learnt from convo's with @HareBrain at LonChron was that I include countless obscure cross references, themes and symbols in my story that add tone but not necessarily narrative drive, and that other readers don't pick up on them. I read and re-read favourite books, and I have put so many little references in that will not be remembered first time round, but will have added value on a second read-through. Kind of like replayablilty.

So, for example, the mention of colours is relevant; every time grey is mentioned, it's almost a psychopomp. There's lots of that kind of stuff. The judge has helped a corrupt businessman get over nightclub licence laws, building regulations for other businesses, taking back-pocket sweeteners and all sorts, and those seemingly unimportant actions all feed into the mythology of the house. He also has a rumored sexual abuse tendency which is what I though Marville's leverage could be. Again, not on screen. It's more like peeling an onion (I hope) but it needs to be clear and clean without the subtleties and symbology being noticed.

Essentially the house is a poison chalice and all the people who come into contact with it have unpleasant -> really unpleasant experiences.

I know from the Middle Ages and 'Dark Ages' and semi-Regency periods, I couldn't write them until I had a firm grasp of the logic and facts, so I want to get this right, even if it's only a line or two.

if a RoW hasn't been formally registered for whatever reason, there will still be evidence of it in old maps, especially estate maps, and if these are lodged with the local Record Office, again anyone can check them and find out where the path was/is

I can work something around this. Marville is a latter day antiquarian and collects all sorts of old folios, books and whatnot.

something's pricking my memory about resurrected RoW, which haven't been enjoyed in recent years but which nonetheless can be reinstated if evidence of them is found, but I'd have to research that if you want to know more

Altho' there's never been a RoW and TBH I don't really want to have one - it's all been done adhoc for centuries for a reason (this is a folk horror element) - this seems like a promising route to take. It will fail, but I need it to be plausible that it may have a chance. Sure, ther could be a logical, pleadable case with historic ROW as you say, but I don't want there to have ever been a ROW. The new owners are adamant, and so the only way to actually get it (albeit failed) is for this third party (Marville Pikepepper) to go unorthodox.

What do you think?

pH

 

[Mouse]

For a moment I actually thought I might be able to help with something as had a bit of a dispute with the neighbours recently over a hedge. (Neighbour was claiming 'party wall act' and we were explaining that didn't apply to a friggin' hedge) but yeah... different thing.

I include countless obscure cross references, themes and symbols in my story that add tone but not necessarily narrative drive, and that other readers don't pick up on them. I read and re-read favourite books, and I have put so many little references in that will not be remembered first time round, but will have added value on a second read-through. Kind of like replayablilty.

So, for example, the mention of colours is relevant; every time grey is mentioned, it's almost a psychopomp. There's lots of that kind of stuff. The judge has helped a corrupt businessman get over nightclub licence laws, building regulations for other businesses, taking back-pocket sweeteners and all sorts, and those seemingly unimportant actions all feed into the mythology of the house. He also has a rumored sexual abuse tendency which is what I though Marville's leverage could be. Again, not on screen. It's more like peeling an onion (I hope) but it needs to be clear and clean without the subtleties and symbology being noticed.

Are you sure you haven't been writing forever? Don't be telling me you're not very good at this!

 

[The Judge]

Ah, right. Totally got the wrong end of the stick, then -- it was the boundary dispute bit that threw me. Still, if you want to write about the boundaries in more detail and/or about RoW, you've got some more background now!

So, Marville wants to get to the tree, and can't do it legally as the Sommers refuse to allow it. Does he/she just want to go alone, or are we looking at the whole shebang of a complete village expedition? If the former, of course, just have a trespass through the golf club non-fence. Actually, even for the latter, you could go with mass trespass -- it's happened before, and as long as the owners don't get a whiff of it in advance, there's nothing they can do. If they do get a whiff of it, they would apply for an injunction to stop the trespass, but Rooke would refuse it. Or Marville could make an application for it to go ahead based on historical precedent, which Rooke allows at the very last minute, so the Sommers don't have time to appeal the decision.

I can't see we're looking at a boundary dispute kind of thing, though, unless Marville is trying to argue the other way from what I presupposed last night, ie he's trying to say the golf course boundary extends into the Sommers' land and therefore the tree itself belongs to the golf course. Rooke will, of course, be a senior member of the golf club, so he could force the committee to allow all the town to tramp over the course to get to the tree in that event.

But no matter how corrupt Rooke is, though, I simply can't see how he can fix the Land Registry docs. He could have the golf course "lose" its own deeds as long as they're not in hock to the bank, or even if they are, if the bank manager is part of his cabal. But that would only help if the title isn't registered -- if it is, the LR records win. He could get his hands on the Sommers' deeds if they're held by one of his mates, eg a corrupt solicitor, so they could also be "lost", but again it requires no LR involvement, which is unlikely if the Sommers have recently come into occupation/ownership. The same for the historic records -- they could be mislaid under his hand. But I can't see what losing any of these records would accomplish.

The only thing that might work is forgery, with the purloined documents changed in some way eg showing the tree belongs to the golf club, and they try and argue the LR docs are at fault. That's unlikely to succeed, though. Alternatively, they create a purported transfer of land from one party to another now, eg from the Sommers to the golf club, which is then registered. But that would be so easy to detect when the Sommers found out, it would be professional suicide for anyone to embark upon it no matter what the incentive.

Had another thought as I'm typing, which would give you corruption with less risk of detection and punishment. If Marville is an antiquarian, what about him/her and Rooke forging a very old deed between the then owners of the house and the town council binding their successors for all time, which -- preferably for a one-off consideration** paid to the then owner -- gives the townsfolk a right to visit the tree via the beating the bounds thing on a specific day every year. I'd suggest this be at a quarter day to give historical verisimilitude (Lady Day, Midsummer Day, Michaelmas or Christmas Day) or better yet from your themes' point of view All Hallows, which was a cross-quarter day (the others are Candlemas, May Day and Lammas). If this deed is suddenly "discovered" in the Record Office or some equally plausible place the day before -- or the very morning -- the ceremony is due to take place, Marville could immediately apply ex parte for a court order requiring the contract in the deed to be honoured, which application Rooke grants. No obvious criminality, provided Marville is clever enough to do it properly, though Rooke would get lambasted for his conduct in hearing it ex parte, so it's just as well he dies before the powers-that-be force his retirement!

That work any better for you?


** contracts require consideration, and though deeds don't, it's best to have something. Often this was symbolic eg a peppercorn rent, or as in the Cadfael story, a rose rent -- so there a rose had to be presented to the owner every year. I'm pretty sure there are still some vestiges of these old customs hanging around, and HMQ gets yearly gifts of things in return for privileges granted centuries ago. You wouldn't want a continuing payment in the forged deed, though, since no such payment has ever been made in the past, so the right would have elapsed.

 

[Phyrebrat]

just amazing responses thanks. I’m just on a half hour break between 5 hour workshop and 3 hours at RAD, on my phone and starving so I’ll try to keep this message coherent.

Are you sure you haven't been writing forever? Don't be telling me you're not very good at this!

It’s true, I’ve been writing this forever! I first had the idea for ‘a story’ in 2009 but I’d never written anything before other than academic papers (my dissertation on dance education in inner city schools is available ha ha). I joined Chrons in the hope of starting to write and never left. But I also then became more aware of how demanding the craft of writing is so i stuck around and here I am.

It’s taken me a long time because of my absence of knowledge of historical stuff so when i finish this, my new wips should be much quicker. Mind you, I really love writing about horror and weird fiction in a historical setting so who knows...

I remember the dispute you had. That was a mare.

you could go with mass trespass -- it's happened before, and as long as the owners don't get a whiff of it in advance, there's nothing they can do. If they do get a whiff of it, they would apply for an injunction to stop the trespass, but Rooke would refuse it. Or Marville could make an application for it to go ahead based on historical precedent, which Rooke allows at the very last minute, so the Sommers don't have time to appeal the decision.

This is perfect! It’s simple, sneaky and can lead to a failed attempt of trespassing. Excellent! Thanks.

ooke will, of course, be a senior member of the golf club

Wait! What? How did you know that Rooke was well in with the gold club? You’ve been sneaking reads from my drafts.

Okay. Gotta teach.

Thanks.

pH