Legal right of access over neighbours drive

clw265

Hi

We have a legal (not equitable) right of access over our neighbours drive. We have lived in harmony for 3 years and neither of us blocks the driveway. However my neighbour has complained to me about 2 things recently

1) that he requires that the gates dividing my property and his should not be left open (we leave them open so that we don't have to open and close 2 sets of gated when we go in and out as we always shut his gates). The gates are on our property - does he have any right to state that we have to close them?

2) Also he has said that alhtough he has no issuing with us driving over his drive he doesn't want us to walk on it anymore. Can he do this? I have looked at our deeds and it says that "together with a right of way for the purchasers over the adjoining property as now used and enjoyed" and it aslo states that they are legal rights.

Please can anyone advise me how I should proceed with this? Do I have to have gates shut between his property and mine? We have to drive through these to leave and gain access to our property.

Thanks

1984ReturnsForReal_2

1) If when the gates are open they are on his property he may have a point, if they don't open onto his property I don't think he does.

2) Right of way is right of way whether driving or walking unless stated, I would of thought.


But this is just an opinion & I have no legal knowledge/experience.

Good luck.

Pitlanepiglet

I can't see that he can comment on whether the adjoining gates are open unless as suggested by 1984 they are on his land when open. He may of course have practical issues of a dog or children that he doesn't want roaming? This one is best dealt with by a sensible conversation about what his concern is.

A usual right of way would be at all times, for all purposes on foot or by vehicle but you really need to post up exactly what it says and confirm exactly what part of the area is shared. There should be a plan with your title deeds that shows any shared area.

duncan303

I think what we have here is a prescriptive right aquired either through established use or even possibly through necessity. The wording is very vague or "loose" as commonly described.

If it was an express grant ie a grant by deed between the landowner and another then it should leave no doubt (although not always) as to the precise terms and extent of the use of a defined parcel of land, and the owner of the servient land would have been paid. This situation sounds more like that of a declaration as to established use which would have been sworn under oath possibly even without the landowners knowledge to the effect that your predessesor had used the land as a driveway without objection for a defined period of years.

So you need to establish whether it is an express grant or a prescriptive right aquired by established use. Your land registry title will indicate which. Both are legal titles although the prescriptive grant does not permit you to increase the burden of the servient tenement. (brickweave it for example)

He may feel that your possible change of use of his land has made his enjoyment of that parcel and his adjoining parcel diminish to such an extent that he has no choice but to place you on notice to restrict your use. Your property is entitled to the benefit of right to use his land, probably by way of a prescriptive grant, only in a manner subsisting prior to and, at the date of the declaration. The difficulty with a declaration is to word it loosely enough to get the land registry to accept it and to prevent the landowner being able to take action, and tight enough for you to be able to legally enjoy the benefit of anothers land as you would wish.


As regards the walking. You say you currently walk over the driveway to shut his gates, then that is the purpose of you walking over his land. Carefull you are not using the driveway as a convienient shortcut to gain perambulatory access to your land for any other reason. You would be increasing his burden and you are enlarging your own benefit. Can you confirm that this driveway is the only means of access to your property. Is it also where your services (drains, gas etc) are buried?

As to the "duty to fence" with reference to gates. As Pitlanepiglet suggests do either of you own animals or have animals visit? Exactly whose gates are the second set, you say they are on your land. I would suggest that if you do not close that set of gates as he wishes he is perfectly entitled to place another locked set adjacent on his land and having given you a key insists that you keep them locked at all times.

The question then is, can you establish if money was ever paid to the landowner for the privilege of you using his land as a driveway? Have you ever made a financial contribution to the upkeep of the driveway at all? Do you perform any regular maintenance on the driveway to which the landowner has given permission? Is you neighbours land registered with the land registry? Has he lived there a long time? Was he the owner during the period of declaration?

In the first instance I would be subservient and politely ask the landowner if he knows historically how it has come about that your property is now accessed by vehicle over his land.

All situations are unique so it very difficult to be more precise, the more information you post the easier it will be.


after all this what are the chances of it being an express grant!!!!:D



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Tucker

As always on MSE, someone comes along who knows his or her onions to assist.

Pitlanepiglet

duncan303 wrote: »

I think what we have here is a prescriptive right aquired either through established use or even possibly through necessity. The wording is very vague or "loose" as commonly described.
......... after all this what are the chances of it being an express grant!!!!:D
..

OP says it's a legal right of way granted in his title....

The issue is the area over which the OP has a right and the wording of the right of way.

keystone

clw265 wrote: »

We have a legal (not equitable) right of access over our neighbours drive. We have lived in harmony for 3 years and neither of us blocks the driveway. However my neighbour has complained to me about 2 things recently

There is more to this than meets the eye, I'm thinking. What else has happened thats caused him to find attempt to find redress in this way? You don't have to answer actually but the key to solving this problem might lie in solving another.

Cheers

duncan303

Pitlanepiglet wrote: »

OP says it's a legal right of way granted in his title....

The issue is the area over which the OP has a right and the wording of the right of way.

Both an express grant and a prescriptive grant by way of a declaration are both registerable (legal) interests. We already have the wording quoted in the OP.

The declaration does not have to and may not necessarily include a plan, but it should to be sufficiently clear. It could have been created under the rule in Ellis (continuous and apparent) where the OPs' property was built on land originally owned by the neighbour.

Hopefully the OP will come back to clarify the exact listing on his title of the easement.:)


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duncan303

keystone wrote: »

There is more to this than meets the eye, I'm thinking. What else has happened thats caused him to find attempt to find redress in this way? You don't have to answer actually but the key to solving this problem might lie in solving another.

Cheers

Quite right, the OP needs to understand all positions.


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clw265

Hi

Thanks for all your replies. It seems that it is a complex area. On the land register details that we have it was in 1967 when a conveyance was put in and the then owners of our property paid money (£3000 I think) to have right of access over the then neighbours drive. So does that mean that it is an express grant? We access the neighbours drive to park our cars around the rear of our property, we have no driveway at the front and no room for our own at the side.

Since we have lived in the property (3 years) we have never shut the gates between the rear of our property and their drive ( can I just stress that although it is the rear of our property it is still the front of our neighbours house, they have a separate fully enclosed rear garden) as the gap is 19ft wide and the current gates are not safe, they do not stay shut and when it is windy they blow open onto our neighbours drive and risk hitting their car. We have looked at replacing the gates but unless we dig up the rear of the property and make it flatter we have been advised that we will have that issue with any gate. The wind has snapped an iron bar holding the gates together before!

The reason that this has become an issue is that my neighbour has recently purchased a dog and even though they have a fully enclosed big rear garden would like us to shut the gates between our property and theirs to disturb their dog less. They cannot let the dog loose in the driveway anyway as obviously we can open the gates at any time to access our property.

We don't want to have a conflict with the neighbours, but simply can't afford the thousands and thousands of pounds it wold cost to prepare the ground for gates to safely fit.

Hope this information helps more as your replies have been really helpful

clw265

Forgot to add that we do not pay any money to him for maintenance of his drive or upkeep. I presume that as £3000 was a lot of money in 1967 it was paid with the future upkeep costs in mind.