Prescriptive Easements

scaredofdebt

Hi, sorry for what may seem a lengthy story without much point to it but I would be interested to hear opinions, I realise I cannot get legal advice here but that may be required at a later date.

I currently live with my wife and family as carers for my elderly mother in law who has dementia, she has owned the property from new since the mid-1970s.

The house is on the edge of a small village in northern England and it backs onto a farm track and the old main road (A67) runs underneath the garden, the new replacement bypass is about 50 yards to the North and runs parallel.

The house has always (to our knowledge) had a gate from the back garden onto what would have been the verge for the old A67 , we are currently looking to find the deeds to the property as it is owned outright by MIL, not sure if this would show the gate or access. This gate was used regulary by my in-laws to access the old A67 (presumably owned by the council and the farm track.  We don't know exactly when they started using this but likely when they moved in and it was certainly in use up to around the time my FIL passed away in 2005.  Around then with my MIL alone and getting older, the garden has fallen into a state of disrepair so access to the gate was lost as nature took its course and became so overgrown so as to prevent access.

We moved into the house in 2018 to help with MIL care and over time we have gradually reclaimed the garden so access via the gate is now possible again, it has taken years as the garden is large and time has been short, lockdown helped!

We found the old gate and decided to put a new one in its place as it had seized up.  We wanted to use this access to walk our dogs as they are both nervous of traffic and so this would be a good solution.  The farm track runs about a mile down to the south and there is a public footpath along it but not from our gate, the path joins from a field about 400 yards down, I have discovered this today.

Since the landowner has spotted the gate has been replaced (it stands out as it is new and therefore brighter than the surrounding old wooden fence) we noticed he had pile logs around the exit so we couldn't get out.  We moved the logs neatly so there was a small gap for us to exit, this is all on the verge of the old A67 which we believe is still owned by the council, but I am awaiting confirmation of this.

The landowner has since been back and moved the logs back to block the gate, my wife has spoken with him (things got heated) and he claims to have bought the land and we cannot have access.  He then returned later when we were out and nailed some planks across the gate so we cannot open it at all.

So my questions are do we have any right of access via this gate as the Gov website seems to suggest we might and also is it criminal damage to nail boards across the gate.

Obviously if he has bought the land we wouldn't access it but neighbours seem to think the verge is definitely not owned by this landowner/farmer.

We will be reporting this to the police as non-urgent as the landower did get quite aggressive and want it noting somewhere.

Any comments welcome, we are responsible dog-owners who always exercise the animals on a lead and pick up after them, there are no livestock in the area.

Does right to roam apply at all as well?

I will update when I get the deeds and have checked who owns what part of the land etc.

Thanks for your patience!

Ectophile

Copies of deeds can be had for a very reasonable cost from the Land Registry https://www.gov.uk/get-information-about-property-and-land/copies-of-deeds

You can order copies of not just your deeds, but also any neighbouring properties you're interested in.

scaredofdebt

Yeah I think the solictor holds ours (MILs) but maybe cheaper to get from LR, would they show any access rights or gates for example?   Have to wait and find out I suppose.

scaredofdebt

One thing I maybe didn't make clear is the landowner (we have since discovered from a neighbour that he isn't a landowner but rents a house down the lane) was absolute clear that the gate was new and there had not been prior access, this is definitely not the case but obviously hard for us to prove.  The two people who fitted the gate can testify that the old gate they replaced was old but tough to put a date on it.

FreeBear

scaredofdebt said: Yeah I think the solictor holds ours (MILs) but maybe cheaper to get from LR,

How long ago was the property originally purchased ?

It may predate the requirement to register with the Land Registry, in which case, it would be worthwhile doing a voluntary registration now. A compulsory registration triggered by a sale or transfer incurs higher fees and takes time.

Davesnave

Nailing  boards across your gate is criminal damage and needs a crime number. Maybe a visit from a community police person will solve the problem. However, investigate your deeds and try to establish who owns the verge. The council's Highways Authority might be able to shed some light on the latter.

Are there any old photos showing the garden with the gate in situ? Can they be accurately dated?

scaredofdebt

Davesnave said:

Nailing  boards across your gate is criminal damage and needs a crime number. Maybe a visit from a community police person will solve the problem. However, investigate your deeds and try to establish who owns the verge. The council's Highways Authority might be able to shed some light on the latter.

Are there any old photos showing the garden with the gate in situ? Can they be accurately dated?

We're looking into photos, not found anything yet unfortunately.
Good idea about HA will try to contact them, thanks.
We've now reported to the Police who were surprisingly helpful and interested and we have a reference number, they are sending someone round to chat and have a look in the next few days.  Parish council have also been made aware, for what that's worth.
The "neighbour" has been round this morning with his dog to check if we've moved anything, we've not as yet as want to get CCTV up and make the police aware first.  Starting to feel like harassment now.

princeofpounds

Right to roam? No.

Two questions - does this meet the requirements for an easement by prescription? And can you evidence it?

There are many nuances in individual cases, but generally speaking if you can demonstrate continuous access for 20 years without explicit permission or opposition then you are likely to meet the requirements.

As for evidence - if you can demonstrate that use, then the evidential presumption is in your favour, and the servient landowner has to come up with some kind of rebuttal (such as - they gave you a license to cross, or you haven't actually used it for 20 years, or whatever).

Ultimately if you want this tested and you can't reach a settlement, you would look at going to a Tribunal. If you have legal cover on the insurance for the house, that would be a good place to start. Otherwise a consultation with a solicitor you appoint yourself.

https://www.crippspg.co.uk/real-estate/prescriptive-easements-the-fiction-continues/

princeofpounds

scaredofdebt said: Starting to feel like harassment now.

It's not harassment. There is a civil dispute here, and for all you know the other side has an honestly held belief that you are trespassing. I had relatives who were farming, and you wouldn't believe the liberties some people take with adjacent farmland. Grass cuttings dumped over the fence and making sheep ill, dogs released for exercise into fields containing livestock etc.

I suspect you are in the right on this dispute, and the other side may be a total POS. But don't over-dramatise it, it won't help your own outlook on life.

Soot2006

Also worth checking Google Earth archives which often go back to early 2000s - if an access has been used regularly, you might see that in satellite photos - trodden ground, etc. We used this to prove we had been using an old right of way when a landowner tried to have it extinguished because it "wasn't used" ... could clearly see a different coloured bit of grass running from our gate up through a field. Of course, it's much easier to fight for an existing registered right of way than to enforce a new easement, but the technology might help!

scaredofdebt

Land registry confirms we own the land we thought we owned (which is nice) and the plot includes the fence in question, the land bordering doesn't appear to be a "plot" as such but I cannot find who owns it.  The land doesn't have a border around it like all the other plots have, not sure if this is significant, this is from the Land Registry website and their maps.
The only property I can find with a matching postcode is another farm across the main road and that plot doesn't include the land in question.

Police are sending someone round Saturday morning for a chat and to have a look.

I've done a few more checks on Land Registry site and can find plots for all the farms and houses in the area and there is no mention of any "land attached" to any of the postcodes listed, could the land not be owned by anyone?