Prescribed rights & easements

wgadsby

We are currently in the process of selling our house. We are in the final stages of the sale but a disagreement has come up between our buyers and our neighbour over an alleyway which unfortunately may cause the deal to fall through. The alleyway is part of our house deed. There is a gate from the alleyway in to our neighbour’s garden which seems to have been there for some time. However, our neighbours only have rights over the alleyway in terms of maintaining their property and services under the neighbourhood act. We have lived here for 6 years and in that time, our neighbour has used (to our knowledge) the alleyway once with permission. He moved out four years ago and now lets it out to tenants. He tells the tenants not to use the alleyway. There have been no tenants living there for over a year. The issue has arisen when our buyers’ solicitor contacted our neighbour’s solicitor to get him to state that he exercises no rights over the alleyway. This got his back up and he wrote a letter to our solicitor stating that he does have rights through use and prescription and that he doesn’t have to ask permission.This has put our buyers off and they are now reluctant to buy because they are anxious about him claiming prescribed rights as he has owned the house for nearly 20 years. I have tried to reassure them and we have agreed to provide a notorised statement to state that our neighbour has only used the alleyway once in our tenure of 6 years. However they want our neighbour to state that he only has rights through the neighbourhood act, not any prescribed rights but he is unwilling to do this. We have 3 young children and it is placing incredible strain on our family. We just don’t know what to do next.

da_rule

Nearly 20 years isn’t good enough, unless he has evidence that the previous owner also exercised those rights. He has to evidence at least 20 years use or more.

The amount of times an easement is used isn’t really relevant, it’s more that it could be used. Also, if he has evidence that dates back more than 20 years then the easement is formed at that point, therefore it is very hard to show that the benefit has been abandoned.

If he hasn’t got 20 years worth of evidence then the Court of Appeal decision in the case of Winterburn v Bennett [2016] will assist you. It sets out that a claim for a prescriptive easement can be defeated if there are clear signs prohibiting the use of the land. You could therefore get a sign drawn up along the lines of “access for authorised persons and for authorised purposes only”. You cannot exclude him completely, but you can limit his access to the easement he currently has.

Davesnave

The 'neighbourhood act' you refer to is the Access to Neighbouring Land Act 1992 which applies to all properties in England & Wales and, as you say, allows someone to gain access to repair & maintain.

However, this is an alleyway with a gate at the end, so people would be bound to ask why you have allowed this to exist without challenge if there is no right of way recorded over it. It seems as if you have been sleepwalking into a prescription situation.

On the other hand, your neighbour would need proof of 20 years use on a reasonably frequent basis to claim a right by prescription, and it seems he doesn't have that yet, so his claim, if he lodges one, might fail. It is not cut and dried, like my neighbours' septic tank drainage field ending on my field, because that has been there and used continuously for 20 years+.

You should be guided by your solicitor in this. I can't see how they will persuade the neighbour to relinquish the right they think they've established.

If it were me, I'd be blocking the access and forcing his hand, because it sounds as if the use has been very sporadic and there is no right until it's applied-for, but that wouldn't assist in the current situation.

Sales do fall through; about 30% of them. Last time we sold, in the recession, three of our potential sales collapsed. In your case, you may have to sort out this dispute before you can sell, sell at a price to reflect the situation, or find a buyer, like a landlord, who isn't so concerned.


EDIT: I notice that there is a discrepancy between what I have said and the answer above regarding frequency of use, so the reference below may be helpful. It is only a simplified guide:


https://www.wrighthassall.co.uk/knowledge/legal-articles/2014/03/14/claiming-right-way-prescription/