# Neighbour attempting to intensify right of way



## rightofway (26 Jun 2007)

Hi, I'll try and keep this very long story as short as possible and would appreciate any help anyone can give. 

Basically a neighbour who owns a house and land beyond my mother's home is trying to intensify the right of way. My mother's house is at the end of a rural county road in the south of the country but the last couple of hundred yards or so to her home are private and the road pretty much ends at her home. The fact that the last bit of the road is private is clearly stated on the county maps. 

However from my mother's home there is a dirt lane running on to another house by the lake where Mr X has a derelict house and about a few acres of land. He has owned it for over 30years and my family has farmed the land for about 20 years, nothing too intense. This was all above board and paid for with a small fee each year, of which she has a record. There has always been a very amicable relationship and never any problems. 

But in the past couple of weeks he has been seeking to build a 'proper' road to the house (the land between my mothers home and his derelict house belongs to neither but to another man, whom I can only presume has granted Mr X permission to tar it). My mother asked for info on how deep the road will be, does he plan to rebuild the house etc but he flatly refused to tell her anything. The problem is the road to her house is barely the width of a car, with the porch barely inches from the road. Plus there's a canopy of foliage so no trucks would ever be able to get in. And she is also concerned about a large development being built. He has been incredibly stubborn and is now threatening to go to the High Court - a threat I have no doubt he will carry out - accusing us of blocking his right of way. Granted, my mother placed a small obstruction in his way for a couple of days but removed it when she got a letter from him about it and she has never wilfully blocked access. 

My question is, can he intensify the right of way or can we stop him doing that? What is the legal point of view on this? Obviously he has a right of way to his house, that is without question. But there is simply no room for the trucks he wants to bring in. Cars and small vans have gone down in the past and it may be a bit of a grey area because we've brought tractors down in the past. The thing is, I believe he is already intensifying access by just going on through and is going to change the right of way by stealth. 

Apologies for the long winded posting but this man can easily afford a lengthy High Court battle whereas we can't even afford to walk up the steps. He's very well aware of this fact and I think he's mostly trying to bully us. He's brought in stones to upgrade the road but has left them a mile or so out the road and is getting a worker to bring them in by tractor. On another note, that worker destroyed some of our property which was outside the house by driving across it. 

Obviously we are seeking legal advice at the moment but my mother is worried sick about this manner. Any help or guidance would be greatly appreciated.


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## Caveat (27 Jun 2007)

I think given the suspicions you have about Mr X & his willingness to escalate, that you would be better seeking professional legal advice, and soon.

Unfortunately what appears to be morally correct or civil is often not reflected in law - but there is always a chance that the legal position may be more clear cut than you might imagine.

I think at least an initial visit to a solicitor is worthwhile - good luck!


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## money man (27 Jun 2007)

I find it difficult to understand fully...you dont dispute the fact that he has a right of way down what you perceived to be your mothers private lane to her house ,behind it and down to his old house..but you do have a problem with what he brings down there and what he does on his own land?? 

The only comment i would make straight up is if there are trees/plants that overhang the road that were planted by your family then it is more than likely you who are breaching the right of way . His damaging them by using it would not be his fault i imagine? You may be entitled to a longer lease on his land however given that you have rented it for 20 years and if i was you this is what i would focus on. If you rent the land and old house/access to it then he will hardly do anything with it...I think though that it seems that he has already researched his legal standing and knows his rights. You do not but are upset with all the changes etc...this may be tough luck though. But the best advice to you is to seek legal advice asap so that you are equally informed.


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## rightofway (27 Jun 2007)

Thanks. Trying to get someone who is an expert in right-of-way issues is difficult though. Anyone got an recommendations of where to go?


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## Caveat (27 Jun 2007)

Don't know about 'specialists' in this area but I had some queries re right of way etc during house purchases over the last number of years.  It didn't seem to be outside my solicitor's expertise - and he was just a standard, low profile, small town solicitor.


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## rightofway (27 Jun 2007)

money_man, the issue is that he's intensifying the right of way. He can bring a car and farm machinery down but he is seeking to bring commerical vehicles ie, trucks. As far as I know you can't intensify a right of way to that extent without seeking agreement with the individual who owns the land. As I was saying, we don't want to stop him going to or maintaining his property, we just don't want huge trucks trundling within inches of our windows.


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## Vanilla (28 Jun 2007)

If I were to guess I'd say that at least 70% of solicitors in rural practices have been consulted on and have experience of disputes in relation to rights of ways.

I think the advice given is correct. Make an appointment to see a solicitor and get advice on your particular circumstances. You may need to bring with you a copy of all relevant title documents or your solicitor may need to apply for copies of these ( including the neighbours) in order to advise properly.


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## money man (28 Jun 2007)

Im no legal expert and thats why in summary i said get some advice from your local solicitor or even better one from another town not too far away ..sometimes in these small rural areas there can be contacts/links etc. Anyway i didnt realise that a right of way stipulated what type of vehicle could or could not use it ? When you purchased the property it was obvious that there was  a right of way in front of those windows so you can hardly complain when someone excercises that R.O.W. Ive never heard of intensifying a right of way so maybe someone could explain/define/clarify the meaning of the expression.


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## Vanilla (28 Jun 2007)

I think what the OP means by intensifying is extending the ROW or extending it's scope. A right of way can have all sorts of conditions/covenants attached if it is written which is why the solicitor will need to read all title documents and have a lengthy consultation with the clients regarding its usage before giving advice.


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## jhegarty (28 Jun 2007)

rightofway said:


> This was all above board and paid for with a small fee each year, of which she has a record.




I always understood that once a fee was paid (€1 a year or whatever) it was enough to stop a right-of-way developing ..... anyone know for sure ?


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## Vanilla (28 Jun 2007)

The fee was being paid by OP's family for farming the land to my reading, nothing to do with ROW.


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## money man (28 Jun 2007)

I would agree with Vanilla there. But if the ROW is in existence more than 30 years it is unlikely that it will specifically allow agricultural machinery and disallow lorries/commercial vehichles given that they were not that widespread a consideration 30+ years ago in rural areas...I wouldnt spend too much money on legal advice however after a consultation with your solicitor and looking at maps/covenents i would imagine that it is emotion that is largely pushing this argument.


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## rightofway (28 Jun 2007)

You're right - emotion is playing a big part but so too is the very real threat of being brought before the High Court. Unfortunately my mother seems to have been given bad advice by her solicitor to date which is why it has escalated this far. However the fact remains that the road is just wide enough for a car and the sides of the roads are now being damaged by attempts to bring trucks through


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## money man (28 Jun 2007)

A detailed examination of the land registry maps will show the width/size of the road and therefore whether your land/property is being damaged or whether it is further widening the old car tracks that is still on the right of way


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## Madangan (29 Jun 2007)

rightofway said:


> Unfortunately my mother seems to have been given bad advice by her solicitor to date which is why it has escalated this far.


 
Can you elaborate on what advice the solicitor has given so far?

Also has your mother asked the person over whose land the R of W exists about this,I think in your original post you said he may have got permission from the owner?

If the owner of the land has no objection or has granted an additional right of way or expanded on it and if whatever this person is doing does not require planning permission then unless it is impinging on your mothers legal rights e.g by some form of legal nuisance she may have to grin and bear it. It might be worthwhile checking in the local planning office as to any planning applications made etc..


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## Swallows (29 Jun 2007)

Derelict house, lake, a lot of activity, yes, I recognise the signs. Make way for the next move which will be a planning notice, but they need the road fixed first so that people can get in and out.


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## money man (2 Jul 2007)

If two or more people use the road then you will be able to get an 80/90% grant from the council to have the lane  fully resurfaced / tarred so there may be advantages of this ....Im not sure that you have a legal leg to stand on to prevent this person from doing up their property on his own land via his RIGHT of way!


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## z108 (2 Jul 2007)

My reading of the meaning of 'intensifying right of way' is if your neighbour is trying to increase the width of the right of way encroaching on your property and also the usage of this right of way. Changing the right of way will require planning permission.
 Nothing the neighbour can do will remove your own rights no matter which court or how much money the neighbour has.
Your most basic right is to object to  any application he makes for planning permission.
You also have rights about which hours he builds and  moves trucks up and down the right of way in this residential area and also the right  of protection for your own property.

You should see your solicitor about your neighbour damaging your own property. You should look up the planning permission for the land at your local council offices and  see building control about the uses and to which your neighbour is putting the land and also the hours the neighbour is working on this land.

The time will come when the neighbour applies for planning permission. If he hasnt already. You need to check this out.
With your solicitor onside , you need to protect your own interests by objecting to his planning permission on the basis that the lane is too small for a high density development and  if he wants a block of apartments etc with 30/100 people then this will bring 30 cars down a very small residential laneway where children play etc . It would be a major change of use of the land and of the right of way. The fact your neighbour refuses to talk with you about it is a bad sign.
Even if planning permission isnt applied for yet you need to do your homework and be prepared for this but put a dampener on his enthusiasm right now while you can .
Dont worry about legal fees. Objecting to planning permission is relatively straightforward. However if the neighbour obtains his planning and you then wish to change anything after this then you will suffer a lot of fees as thats pretty much high court territory. So the rule is acting fast prevents fees.
The planning laws in this country dont give you much time to object or protect your own interests. You have to be on the ball about this. And once he obtains planning for his core development he will start getting cheeky and applying for 'minor' alterations to his existing planning e.g. add another floor to his development... add in a car park for 20 cars ... Not knowing your situation completely I can only speculate.


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## sheena1 (2 Jul 2007)

Firstly this neighbour has an existing right of way into the lake and the cottage. I doubt if occasional trucks and lorries using this right of way to gain entry to the neighbours land to renovate the cottage or build a replacement dwelling would be classified an intensifying the right of way. It would be intermittent use and the landowner would be entitled to do so.

However if the land owner were to apply for planning permission for a large development which would involve a permanent increase in traffic flow it could be classed as intensifying the RoW.But on the other hand this landowner may have a general right of way enabling him to do so. Without seeing the title documents and knowing anymore we could speculate but thats not of much assistance to you.
Who actually own's the road leading to your mothers house? You say it is private but this doesn't mean your mother owns it. It could belong to all the landowners in common including the neighbour. 
You say that the Right of Way is only the width of a car due to overgrown foliage but presumably without the overgrown foliage the RoW would be much wider? Are there boundary walls along the RoW? 
You really need to speak to a solicitor as previously advised on this thread. They will be able to advise you after taking a look at the title documents.


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## z108 (2 Jul 2007)

We can only speculate about this ...



sheena1 said:


> It would be intermittent use and the landowner would be entitled to do so.



Only within specified hours and also without damaging the neighbours property. If the neighbours boundary wall needs to be demolished to allow a truck then this is illegal without the original posters permission.
If the development is large then a ,lot of earth might have to be moved and also materials brought in. If dumper trucks are too big for a right of way less than the width of a car then he cant use them. Maybe this right of way  is a footpath and not a road ? Just think how narrow a car really is and according to the original poster this right of way is narrower.



sheena1 said:


> .But on the other hand this landowner may have a general right of way enabling him to do so..



A general right of way doesnt mean he can build a high density development without planning.


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## sheena1 (2 Jul 2007)

"Only within specified hours" quote

- Says who? The landowner is entitled to use the right of way whenever he chooses unless the right is restricted and the O.P. has not given any indication that this is a restricted (legally not physically) RoW. 



"without damaging the neighbours property. If the neighbours boundary wall needs to be demolished to allow a truck then this is illegal without the original posters permission. If the development is large then a ,lot of earth might have to be moved and also materials brought in. If dumper trucks are too big for a right of way less than the width of a car then he cant use them. Maybe this right of way is a footpath and not a road ? Just think how narrow a car really is and according to the original poster this right of way is narrower." quote

Of course it would be illegal to damage the neighbours property. No-one is suggesting he is entitled to. However most of your reply is speculation. You do not know the width of the RoW. You do not know whether a lot of earth will be moved or dumper trucks used. The current physical right of way is narrow due to the overgrown hedges however this does not in itself narrow the legal right of way which is why i asked if there were boundary walls along the RoW. Often in these cases the RoW becomes overgrown through non-usage however the neighbour would be entitled to cut these back provided he doesn't interfere with the neighbouring properties.


"A general right of way doesnt mean he can build a high density development without planning" quote
??? Nobody suggested that it did. His actual plans for the property are speculation and would of course be subject to all the usual planning laws.


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## z108 (2 Jul 2007)

eh ? Please edit the HTML tags on your post a little bit as I find it a little difficult to read.



*edit* this was done. thank you . my response is below.


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## z108 (2 Jul 2007)

The whole objective of  my response was to motivate and encourage the original poster to help him/herself and the conclusion after exploring some avenues is theres a lot he/she can do about this within the law to make the landowners life difficult. Considering the landower wont even discuss this with his neighbour I would encourage the original poster to do everything possible and quickly without delay.



> "Only within specified hours" quote
> 
> - Says who? The landowner is entitled to use the right of way whenever he chooses unless the right is restricted and the O.P. has not given any indication that this is a restricted (legally not physically) RoW.




Building control applies and would tell you. I have dealt with building control personally in the past. The landowner cant start building  and get out the jackhammer at 2 am in a residential area. The same applies to truck deliveries. This was my point. You'll find property rights exist in tandem with responsibilities.
Building control, the department of the environment and noise pollution all  factor into this.





> Of course it would be illegal to damage the neighbours property. No-one is suggesting he is entitled to. However most of your reply is speculation. You do not know the width of the RoW.



Isnt' that what I have already said ?


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## sheena1 (2 Jul 2007)

This thread is not about Building Regulations it is about a RoW. While there may be regulations governing the times work can commence in residential areas the neighbour can use his right of way to access his property at any time he chooses. 

You can speculate about dumper trucks moving earth and demolishing boundary walls but we are not in possession of all the facts here. 
We do not know the true width of the RoW, only that it is presently overgrown.


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## z108 (2 Jul 2007)

rightofway said:


> The problem is the road to her house is barely the width of a car, with the porch barely inches from the road.
> .



The above  convinces me that the advice I gave still stands. Make life as difficult as possible for the landowner. Pursue every possible avenue and ask every expert in building control, planning, department of the environment and noise pollution for advice and assistance. Building control will provide assistance for free.
There is a small fee to object to planning permission being granted and there are good grounds to refuse a high density development.
If the neighbour does nothing then he or she will be shafted. I guarantee it.
The right of way issue is important but not to the exclusion of quality of life of the neighbour who lives there in that residential area. If the landower manages to get planning permission of any sort then the quality of life of the neighbour and safety of children playing and walking up and down that lane is paramount.


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## sheena1 (2 Jul 2007)

While I would also encourage the O.P. to use her right to object to any future planning applications the original post was in relation to the Right of Way and the possibility of intensifying the right of way. 
The Planning Dept will not consider any legal (as opposed to planning) issues. The issue of the right of way is a legal issue. 
While the OP mave have other avenues of preventing a future development via planning and environmental controls this thread asked for advice on the legal issue which related to the right of way in existence and whether the landowner could legally bring trucks and other vehicles through the road. We do not have sufficient information on the RoW without looking at the Title Deeds.  

"Pursue every possible avenue and ask every expert in building control, planning, department of the environment and noise pollution for advice and assistance" Quote.

I agree with you that the OP should pursue all these avenues should the landowner seek planning in the future but as there is no planning application lodged at present and she has no idea what any proposed development would consist of, these avenues are not open to her now. 
She should speak with her solicitor who can advise her of any legal rights she may have in relation to the RoW.


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## z108 (2 Jul 2007)

sheena1 said:


> the original post was in relation to the Right of Way and the possibility of intensifying the right of way.
> The Planning Dept will not consider any legal (as opposed to planning) issues. The issue of the right of way is a legal issue.
> .



The thread title pales into insignificance compared to the best interests of the neighbour. The type of planning permission  granted will  have some relation to the type of access road and right of way to the landowners site. This is why its important for the neighbour to flex his muscles in every way  regarding the type and times of vehicles and activities allowed through building control and the department of the environment etc.
Endgame for the landowner will be planning permission and a development. 
*If  planning is obtained for a new development as things stand then the new planning itself will intensify the right of way which is why its important for the neighbour to do everything possible to oppose planning.*




sheena1 said:


> there is no planning application lodged at present



How do you know this ? This is speculation. The neighbour needs to play hardball to protect his interests , get active and check with the council about whether planning has been applied for. If the right of way is changed in any way apart from pruning back of bushes then this  needs planning too.
Its possible the planning notice might be in the newspaper 'as gaelige' and with no notice on the site. Once planning is applied for theres only a tiny time frame  within which you can object.  Nobody is going to send the neighbour a letter asking if he doesnt mind about planning permission. The responsibility is legally on the neighbour to protect his own interests.
Action is imperative as this is the direction the landowner is obviously heading in..


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## sheena1 (2 Jul 2007)

There is a legal obligation to post a site notice. Failure to place this notice invalidates the application.


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## z108 (2 Jul 2007)

sheena1 said:


> There is a legal obligation to post a site notice. Failure to place this notice invalidates the application.



Sometimes they get away with not having it. Or depending on the strange situation regarding rights of way it could be placed where the neighbour cant see it. 
Even at that once its up theres not a lot of time left to formulate and lodge an objection. and the* need for vigilance* is the most important point!


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## sheena1 (2 Jul 2007)

sign said:


> Sometimes they get away with not having it. Or depending on the strange situation regarding rights of way it could be placed where the neighbour cant see it.
> .


 
This is speculation. It is a requirement of the planning laws to have a visible site notice. 
There is not a lot the OP can do in terms of lodging an objection until the landowner first lodges an application with the local authority. 
Sign I think we have hijacked this thread! I don't think I can add anything further as IMO the OP needs to seek legal advice in relation to her original post about the RoW and whether she can restrict the landowners use over same.


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## z108 (2 Jul 2007)

_The laws of this land are not always enforced adequately.
_


Yeah lets stop hijacking the thread. Neighbour please be vigilant about every action of the landowner because if you dont then you will have to live with the consequences during building and also afterwards  with new neighbours.

And dont let anyone discourage you from protecting your own interests. I get the feeling you are afraid of the high court and legal proceeedings and their costs in general but it will only become expensive if you decide to do anything  once its too late. 

Act fast and first and you will minimise the costs.


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## Swallows (3 Jul 2007)

As a matter of interest, how long does the site notice have to be left up for? I know there is a five week time frame for lodging objections, but I do know of cases where the site notice has been taken down ( where houses already built are up for sale) and I presume the builder doesn't want prospective buyers to know there are other houses in the pipeline.


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## rightofway (3 Jul 2007)

Thanks for all your advice. Turns out our solicitor is a donkey who has given us bad advice from the onset, hence why it has gone so far so quickly and we're now facing a High Court plenary summons. Apparently no document is in existence which states what type of right of way there is on this particular road - therefore he has a full right of way. And as vehicles become more modern, the right of way intensifies with it.  The donkey said he has no document, we have no document and he has no clue where to start looking for one. Trucks have now been in and out the road and have damaged the sides of the road, pushed in shores etc. It took one truck about 12mins to get the last 50yards as the road is so narrow and it went well over the side of the road into the ditches. But according to the donkey's boss, there has been a recent case in which it was ruled that if the trucks goes over the edge of the road, so be it. Also, the right of way is not restricted by height and therefore he could force us to the top the trees along the lane. We've trimmed them so there isn't so much of a canopy and they don't touch the top of the trucks so hopefully that will be enough. I've been told he can't do anything about the actual hedge and would have to offer to buy it (which we would refuse) if he wants to take it out to give the road more width. Is this correct? Because if that's the case there's simply no point in him asking to top the trees because the base of them would still  be adjacent to the road. 
Now our only way of sorting this out is to argue our house could be damaged by the trucks. I took pictures of the trucks arriving (which unfortunately turned out a bit fuzzy) and we're going to get a few engineers reports done. We're going to try to show the road physically can't carry the weight of truckloads of stones, as well as showing our house has been/could be structurally damaged by the trucks. Really our only recourse is to show the house is too close to the road and therefore the size of vehicle must be limited to protect the structure. 
About future planning permission....well, we would absolutely object. I've been checking regularly and nothing has been lodged. Yes you have to put up a notice in a public place but you only have five weeks from the application was *lodged* to object. But it could take the planners a few weeks to get round to looking at it, another few weeks before you check see if anything was happening....and suddenly the date has passed. The donkey consulted a senior barrister and he said while the right of way can be intensified, the use of the property cannot. Therefore, if he decides to throw up 50 holiday homes, we have serious grounds for objecting. Plus he'd never get the trucks by our home.....
On another note, I would not wish this mess on anyone. I've been trying to tell my mother from the start to seek a second opinion and although she did, he told her the same as the other donkey. Hence why it's gone so far. My only regret is that I didn't take it upon my self to get another third, fourth, fifth opinion.


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## MOB (3 Jul 2007)

"My only regret is that I didn't take it upon my self to get another third, fourth, fifth opinion."

Well why not do so now?  It's not too late - proceedings have only just been served.  The courts close down in August, and there is every chance that it will be September at least before the substance of this case gets before a court in any shape.  

No disrespect to you (or your mother) but I am sure that her present solicitor will not feel at all unhappy at losing this file to a solicitor in whom you have more confidence.  Get the best legal advice you can afford, but above all, get a solicitor in whom you can place your trust.   

This should not in any way be taken as agreeing with your assessment of the present solicitor: the information given would not be adequate to allow me to draw any conclusion on the quality of the service already given.  But the point is, you have already reached a conclusion:  you don't trust the solicitor's competence.  Presumably, your mother now shares this distrust.  No solicitor wants a client who does not trust the solicitor's competence.  It is in your mother's interest and in the interests of the solicitor that this relationship be terminated asap and in as civil a way as possible.


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## Madangan (4 Jul 2007)

rightofway said:


> Thanks for all your advice. Turns out our solicitor is a donkey . The donkey consulted a senior barrister ...
> 
> I've been trying to tell my mother from the start to seek a second opinion and although she did, he told her the same as the other donkey.
> 
> My only regret is that I didn't take it upon my self to get another third, fourth, fifth opinion.


 
So I take it that the second solictor is also a donkey? Hmmmm they will let absolutely everyone and anyone into the Law Society these days..! Well they do say that the Law can sometimes be an ASS..Hee Haw Hee Haw.


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