Public footpath fenced off - Council not interested

irritated-homeowner

lincroft1710 wrote: »

How many households are actually (as opposed to potentially) affected by the footpath blockage.

There are 30 houses affected in total

irritated-homeowner

!!!!!! wrote: »

Is the path mentioned in your deeds?

If so and it is also in the deeds of other houses or even in the overall deeds of the estate then any application to make it public would be frustrated as you have been given permission to use it.
You would need to find 20 years evidence from people who do not have the right

No it's not mentioned except in so far as the plans for every property include an estate drawing which shows where fences are or aren't permitted, and the path is shown such that it cannot be closed off

irritated-homeowner

Landofwood wrote: »

Do you have a saw?

Have to say I am tempted!

irritated-homeowner

mrschaucer wrote: »

Apply to have it made a public footpath using the appropriate forms. I agree that it sounds a long winded process, but the council can't refuse if all the appropriate evidence is there. Your council should have an information page like this showing you what to do.

Freecall wrote: »

Highways won't be interested if it not adopted but that does not mean that all is lost.

You need to speak to your PROW Officer (Public Rights of Way) who you should find at your second tier council - that will be the one you pay your Council Tax to, probably District or Borough depending where you live.

Even if they come back and say it is not registered as a right of way, you will know how to move things forward.

Thanks both, can't see the same information on my council's website but will write asking who the right of way officer is (if they have one) and go from there.

LittleMax

Freecall wrote: »

You need to speak to your PROW Officer (Public Rights of Way) who you should find at your second tier council - that will be the one you pay your Council Tax to, probably District or Borough depending where you live.

Rights of Way will be County Council if 2 tier authority, but 2nd tier should point you in their direction, so surprised that nothing on website for Rights of Way, it is a statutory provision.

Land_Registry

You state that the footpath is owned by one or more of the adjacent owners - I assume therefore it is registered. If so then it is not a public right of way of the type you are referring to although it sounds as if anybody has been using it for many years.

Rights can be acquired over time (minimum 20 years) through use so if your right of way is being denied you should consider taking action to enforce it both legally (legal advice) and seeking to register that claim on your own title.

It can still be 'adopted' in so far as the council will maintain the surface it but the ownership remains with the owners as mentioned.

The wording of any covenants, including the covenanting clause itself, is crucial in understanding their meaning as well as who is likely to have the 'benefit' of such covenants.

As you appreciate where such covenants exist on each title and are replicated the odds are that each property has that benefit - they all once formed part of the larger area of land which was then developed and the builder imposed the covenants on each new house plot.

If the neighbour has breached the restrictive covenants then again, as you already appreciate, you can consider taking legal action against them providing you can show that you have the benefit of the said covenants.

lisa110rry

To the Land Registry representative:

Would you mind clarifying something for me, I believe it to be a similar but not exactly same situation.

A friend lives in a canal-side terraced home. Between home on his west side and the one west of that there is an entry. There is an easement relating to this entry which give rights to my friend and his neighbour on the east side. Western neighbour had blocked the path so that friend and elderly eastern neighbour could not pass making it impossible to access the back of their homes from the canal side.

I checked case law, printed cases and told my friend to show his western neighbour that an easement "never dies" and that he must give a key to the garden gate to friend and eastern neighbour to allow them to pass. This was successful.

My question is, in what way does the present circumstance differ (covenant) from my friend's situation (easement)? Or was I wrong in what I told my firend? (Mission accomplished though, they can take their mowers through the passage rather than through their homes.)

Many thanks in advance for your time.

Land_Registry

lsa110rry - covenants and easements are two different things. In this thread the OP was referring to both as possible options to remedying the situation. In most cases though it is an easement which is at issue, so the advice you gave appears to be correct.

A restrictive covenant is imposed by one landowner on another and restricts that owner's ability to do things on their own land - in the OP's thread it is unclear (to me) whether the person who has fenced off the footpath owns it or not. If they do and the covenant referred to restricts their ability to fence the land/property they own then it can come into play as they may have breached it.

An easement is granted by one landowner to another so in your scenario the landowners have a right of way over the path presumably granted by the original landowner/developer of the properties.

Once granted such an easement can die (extinguished), normally through the benefiting landowner formally releasing it through a legal deed for example. I suspect your reference to it never dying relates more to losing it through say not using it. That alone doe snot extinguish and easement though but if there is some additional evidence making it clear the right is no longer wanted/needed e.g. bricking up a gap in a wll, then that can cause the easement to die if applied.

lisa110rry

Thank you very much indeed. I'll read and re-read your comments to get it completely clear in my head.

With regard to extinguishment of an easement, I do understand that it can formally be "murdered" but cannot "die of old age". In fact there's an interesting case in London (I think) where although it was impossible to do now what the easement was intended for, it was found that the easement remains. Unfortunately, I've forgotten the name of the case, darn it.

Land_Registry

What I am referring to is extinguishment through 'abandonment' so that maybe something to research if you wish to.

Failure to exercise the right is not, by itself, evidence of abandonment. There must be evidence of an intention to abandon the right. This may for example be a change in the physical state of the dominant land (the land which has the benefit of the easement), which makes it impossible to exercise a right. The owner of the dominant land must also have agreed to or taken part in this change.

Everything is though treated on merit hence case law can be important but so too can the facts of the case. As such an extinguishment will rely on evidence submitted to support the claim that the right has been extinguished in this way it can be open to dispute.

Probably widening this thread too much and by the sound of it your friend resolved the issue anyway based on your advice