Neighbour & land query

Seronera

moneyistooshorttomention wrote: »

Another way of looking at that would be to tell prospective purchasers that there used to be "right of access" (assuming that is LEGALLY the case, rather than just having been a favour granted), but that you yourself blocked it up.

Then tell them that, technically-speaking, that "right of access" still exists and ask them whether they want you to attempt to restore it or no, rather than just getting on and upsetting the neighbours when next owner might not even require it.

Times have changed since many of these houses were built. Back when they were built people didn't have the expectation that "A back garden is private...end of" that most of us have these days and were probably not so concerned (if concerned at all) at the thought of finding strangers in their garden. These days most of us don't expect that.

That's mostly incorrect I'm afraid. The right of access exists.... Full stop. One thing that hasn't changed is the law. Blocking it either involuntarily or voluntarily alters nothing. You must have read of all the palaver when a celebrity tries to alter a footpath to maintain privacy. They often lose the case in spite of all the money in the world.

Also if you grant a "favour" as you call it, and that favour lasts 20 years without interruption, then the favour becomes a right. Many private roads with permissive access are closed for one day a year to this day so that the owner reasserts their rights. This will not apply in this case however as rights of access are different and pretty well immutable unless the neighbour has proof there was never a right of access in the first place.

Davesnave

Dan-Dan wrote: »

No one is going to give up these rights , at least , they shouldnt if they want to keep maximum value of their property intact

When we bought our current property, the accesses on the ground didn't tally with the plan. The neighbour and our vendor had come to an agreement to move one of them.

That was fine, but we wanted the arrangement formalised, so we asked for the titles of both properties to be amended prior to exchange. No problem.

It was only after moving in that we realised the owner of next door, having changed their access irrevocably, had left no way for future owners to drive into their garage.

Some people really are bonkers!

moneyistooshorttomention

Seronera wrote: »

That's mostly incorrect I'm afraid. The right of access exists.... Full stop. One thing that hasn't changed is the law. Blocking it either involuntarily or voluntarily alters nothing. You must have read of all the palaver when a celebrity tries to alter a footpath to maintain privacy. They often lose the case in spite of all the money in the world.

Also if you grant a "favour" as you call it, and that favour lasts 20 years without interruption, then the favour becomes a right. Many private roads with permissive access are closed for one day a year to this day so that the owner reasserts their rights. This will not apply in this case however as rights of access are different and pretty well immutable unless the neighbour has proof there was never a right of access in the first place.

I am aware of those facts.

There is a huge difference though between someone trying to block a "public footpath" used by everyone across some of their acres of ground and one little person wanting to keep their private back garden private from one other little person.

Right at this moment, OP doesn't seem to have established yet whether there is a legal "right of access" or it has been done on a favour basis. If it was on a favour basis, it really wouldn't be very nice to start "counting years" and hoping they would come to more than 20, as that would be kicking the doer of the favour straight in the face and telling them they were naïve for allowing the favour.

Mojisola

moneyistooshorttomention wrote: »

There is a huge difference though between someone trying to block a "public footpath" used by everyone across some of their acres of ground and one little person wanting to keep their private back garden private from one other little person.

If you buy a house with a ROW across your garden, you know what you're buying and you'll pay a lower price for your property.

It's pointless then complaining that you can't keep your back garden private.

System

Davesnave wrote: »

Some of the advice others have given above is wrong. A right of way is not normally extinguished by non-use. .

Correct but this is not non-use but blocking by the dominant owner by removing the access point and replacing by a solid fence could be considered so.

The mere non-user of an easement (eg right of way) does not constitute abandonment of it. Something more is needed:

‘To establish abandonment of an easement the conduct of the dominant owner must… have been such as to make it clear that he had… a firm intention that neither he nor any successor… of his should thereafter make any use of the easement… Abandonment is not… to be lightly inferred. Owners of property do not normally wish to divest themselves of it unless it is to their advantage to do so, notwithstanding that they may have no present use for it.’ (Gotobed [1971]).

Davesnave

!!!!!! wrote: »

Correct but this is not non-use but blocking by the dominant owner by removing the access point and replacing by a solid fence could be considered so.

I don't think so for one minute.

Your own quote:
"To establish abandonment of an easement the conduct of the dominant owner must… have been such as to make it clear that he had… a firm intention that neither he nor any successor… of his should thereafter make any use of the easement… "

This doesn't really apply here, since a fence panel is purely a temporary structure, not something permanent and likely to stay there for many decades.

It continues:
"Abandonment is not… to be lightly inferred."

If the OP had obtained planning permission and built a permanent structure, with foundations, instead of putting in a fence panel, that would have looked like abandonment.

Mojisola

Davesnave wrote: »

I don't think so for one minute.

Your own quote:
"To establish abandonment of an easement the conduct of the dominant owner must… have been such as to make it clear that he had… a firm intention that neither he nor any successor… of his should thereafter make any use of the easement… "
doesn't really help you much here, since a fence panel is purely a temporary structure, not something permanent and likely to stay there for many decades.

It continues:
"Abandonment is not… to be lightly inferred."

If the OP had obtained planning permission and built a permanent structure, with foundations, instead of putting in a fence panel, that would have looked like abandonment.

I agree with Dave. There have been cases discussed on GardenLaw such as where the neighbour built a brick extension across where the ROW entered their property and lost their ROW but a fence panel instead of a gate isn't likely to do the same.

Davesnave

Mojisola wrote: »

I agree with Dave. There have been cases discussed on GardenLaw such as where the neighbour built a brick extension across where the ROW entered their property and lost their ROW but a fence panel instead of a gate isn't likely to do the same.

Yes, that's a good site for the OP to refer to.

http://www.gardenlaw.co.uk/

Seronera

moneyistooshorttomention wrote: »

I am aware of those facts.

There is a huge difference though between someone trying to block a "public footpath" used by everyone across some of their acres of ground and one little person wanting to keep their private back garden private from one other little person.

Right at this moment, OP doesn't seem to have established yet whether there is a legal "right of access" or it has been done on a favour basis. If it was on a favour basis, it really wouldn't be very nice to start "counting years" and hoping they would come to more than 20, as that would be kicking the doer of the favour straight in the face and telling them they were naïve for allowing the favour.

The access is on the deeds apparently and it takes no time at all to get onto the Land Registry to check, provided the property is Registered. Whatever your take on the matter it is a very careless person who gives up a right of access as it is a very valuable right they will have paid for when buying the house. The fact they seem reluctant to confront a neighbours wrong doing is a different matter altogether but probably has no bearing on the facts as we know them, which are quite simple. 1) He has a right of way 2) the neighbour has blocked it.

The owner has done no wrong, but has been disadvantaged by his neighbour. Personally speaking I would not give up any rights whatsoever on property I own and in the nicest possible way I would seek to have those rights reinstated as its quite possible the denial of access has devalued the property or at the very least leaves a new owner with a potentially serious problem. I would not buy a house with such a matter unresolved, so it might well put off a potential buyer.

In a nutshell you have to look after your own interests as others will take advantage of you if you do not. I've seen this kind of carry on lots of times, and in my case a neighbour attempted to 'adopt' part of my garden as his when we were living away and fenced it in. Luckily the Land Registry maps confirmed our ownership by written definition and on the boundary map, but it still cost me a tidy sum to get my own land back. It turns out they had been misled by the previous owner into thinking the land was theirs. She was a dotty old lady, but their solicitors did not actually check. They just chose to believe her. You have to decide whether they were innocent parties just being naive as first time buyers, but it did not alter the fact that the land was mine, not theirs. I was made to feel like the guilty party at times, but the facts were simple.Somebody nicked something off me..full stop. Exactly the same applies in this case. By erecting a shed somebody has stolen a right to access and that right has value, whatever you might think.

turk3y

is the access in the deeds specified in a specific location, could you not place a gate a pannel over, it might not be exactly in the corner but the basic role of passing from your garden to theirs and vice versa would be restored.