Right of access denied

Davesnave

moneyistooshorttomention wrote: »

I am wondering whether it's one of those situations whereby access was used over her garden in the past, but hasn't actually been formalised as a ROW that legally HAS to be kept open (whether she wants it or no).

I think you are overthinking this.

"At all times and for all purposes" is designed to be unambiguous.

Davesnave

moneyistooshorttomention wrote: »

But, whatever the facts of this are, it is very clear you will have not just "something likely to lead to a dispute", but an actual "dispute" on your hands if you do go through her garden and it will have to be declared should you sell your house in the future.

This is not clear at all.

Many controlling people will give greater respect to those who stand up to them, than to the weak who just give in.

Witless

danslenoir wrote: »

Since then, apparently, she has granted neighbours access for maintenance purposes on request, but that no one has really used it ever during the 30-odd years she has been there.

I'd certainly speak to your solicitor about this. From memory, RoW can lapse if not (regularly?) used and, though I can't find the reference at the moment, the time span of 7 years rings a bell.

Davesnave

Witless wrote: »

I'd certainly speak to your solicitor about this. From memory, RoW can lapse if not (regularly?) used and, though I can't find the reference at the moment, the time span of 7 years rings a bell.

Witless, by all means post here, but if unsure about something. check your facts first. Otherwise, you just muddy the waters.

A right of way is not extinguished by lack of use; it requires a deed of extinguishment agreed between the parties concerned.

It may be desirable for a right of way to be extinguished altogether. Again, this has to involve negotiation with owner(s) of the dominant tenement(s). It is usual in these circumstances for the owner of the servient tenement to pay all of the costs associated with obtaining a replacement right of way (over a third party's land) for the dominant tenement(s). A deed of Extinguishment is needed to formalise the extinguishment.

http://www.boundary-problems.co.uk/boundary-problems/priv-r-o-w.html

http://www.quinnlaw.co.uk/how-a-right-of-way-can-be-lost/

Land_Registry

Although there is not too much more I can add from a registration perspective subsequent posts merit some additional comment.

A locked gate is not always there to deny access or a right of way - many neighbours will install a locked gate and share keys with those who have a right of access for example. I have not heard or read of the 'lock it one day a year' scenario before.

Clearly things can happen that may in law result in a right of way being extinguished. However until such time as that 'extinguishment' is applied for re the registered title it has not taken full effect. As the neighbour's title refers to it being subject to the right of way if it has been extinguished she should apply to have it removed. Until she does then you have the evidence you need it seems.

As explained in my earlier post a right of way does not simply lapse through on-use over time. Section 11 of our Practice Guide 62 explains this in a little more detail and states
"The person entitled to the easement must not only have stopped exercising it, but also to have “demonstrated a fixed intention never at any time thereafter to assert the right himself or to attempt to transmit it to anyone else” (Tehidy Minerals v Norman [1971] 2 QB 528, per Buckley LJ)."
Now some might suggest a locked gate implies abandonment but of course here it is the neighbour who has locked it and not the 'person entitled to the easement'.

I have seen other posts re rights of way lapsing after 7 years of non-regular use but am unaware of any basis for that understanding

As you already appreciate resolving the issue really comes down to you and your neighbour. You have the registered details and previous understanding as to how the neighbour and your seller approached the matter so it is now for you and your neighbour to agree a way forward.

'Tea and cake' is a favourite phrase for others and in neighbourly issues such as this and boundaries I tend to use the tennis match analogy. The issue is a tennis ball and it is up to each of you whether you return each shot as it is played. Based on everything you have posted to date you seem to have a much better range of shots to win the match.

Davesnave

Land_Registry_representative wrote: »

I have not heard or read of the 'lock it one day a year' scenario before.

That refers to a completely different thing, permissive paths, where the public are allowed to use them, but which are locked, usually one day a year, so that the landowner retains control and no right of way through use can be implied.

danslenoir

Land_Registry_representative wrote: »

Clearly things can happen that may in law result in a right of way being extinguished. However until such time as that 'extinguishment' is applied for re the registered title it has not taken full effect. As the neighbour's title refers to it being subject to the right of way if it has been extinguished she should apply to have it removed. Until she does then you have the evidence you need it seems.

So there is a possibility that at some point in the past, a deed of extinguishment has been agreed, but the neighbour or her predecessors have not applied to have the ROW removed from the title register?

Is this likely?

davidmcn

danslenoir wrote: »

Is this likely?

Not at all.

moneyistooshorttomention

davidmcn wrote: »

Not at all.

Losing track here.

What is "not at all" referring to?

bouicca21

is this likely?

Pretty sure this is a no.

Ignore Money, she's talking about an entirely different scenario. As Davesnave says the locked gate one day a year is to prevent claims to prescriptive rights, in this case the ROW is clearly in existence. That sort of back access, set up from the outset, is pretty common with Victorian/Edwardian terraces.

More to the point is the suggestion that by complying with your neighbour's wishes you are arguably abandoning the right and giving her ammunition for extinguishment.

Of course you need to get on with the neighbour, but she needs to get on with you too. It can't be a one way relationship. Use that ROW and be seen to do so, but don't overdo it, and stay cheerful and polite.