Prescriptive Easements

scaredofdebt

princeofpounds said:

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/

The gate has been there for well over 20 years, 43 to be exact so it should, in my understanding as a lay-person, be sufficient to be considered easement by prescription.  Difficult to prove though, certainly difficult to prove it was used "regularly".  Still looking at that.
We've (my in laws) not been made aware of any previous opposition by anyone, it's only when we replace the old gate with a new one that it started.  The old gate blended in with the old fence, same age, wood etc, the new one is brighter as it's new wood.
Thanks for your comments, very helpful.
I would have thought when the land was purchased, if it has been, that due diligence by the vendor would mean they would have noticed the gate and further action/communication been made at that stage?

princeofpounds

Land is always owned by someone - the Crown if no-one else. If it's not at the land registry, that merely means it is unregistered, not that is isn't owned. However, given that registration is compulsory and has been for some decades, it would be odd if the land concerned has been transacted and not registered (unless very recent). I believe there is more than one way to search for land at the registry - did you do a map search?

'Regularly' does not mean every week. It just means not isolated incidents of access, so that you don't obtain rights by running across someone's field once in a blue moon. In a normal situation you wouldn't have much trouble evidencing this - your mother in law would just provide a statement of truth and that gets you off the starting blocks. However because she may not be of sound mind that is more problematic than useful. However, your wife may be in a position to do so if she has first-hand knowledge of how her parents used the gate dating back long enough.

princeofpounds

scaredofdebt said:

I would have thought when the land was purchased, if it has been, that due diligence by the vendor would mean they would have noticed the gate and further action/communication been made at that stage?

Not necessarily. It may not have been noticed. Or the whole story may be bluster to get you to think your rights had been erased.

scaredofdebt

Thanks all, I did various searches and couldn't find any record of ownership on the land registry.
I rang the Highways agency but they confirmed they don't maintain any of the A road so they put me through to the council who I have now emailed details to and they are going to look into it.
The local councillor thinks this may be relevant:

https://www.rixandkay.co.uk/2018/02/22/adverse-possession-right-acquire-land-doesnt-belong/#:~:text=Minimum time requirements – Before any,for at least ten years

The chap who has nailed the gate shut has been "tending the land" ie cutting the grass verges, erected a fence at the entrance to the road and put up "no parking" signs.  I think he is concerned about our gate in relation to paras 6, he's been doing this to my knowledge for about 2-3 years.  Paras 3 and 5 are also of interest.

In conversation with my wife he mentioned he was planning on putting up an electric gate and building houses further down the road and creating a "gated community".
Having said that he did say a lot of stuff that seemed nonsensical.
Personally I don't care what he does (within reason) but I do object to people trying to bully me and my family, thanks for advice so far.

Oh, there is a bit more background.  Apparently the council refused (no pun intended) to collect his bins from his house (about half a mile down the lane) any more a few years ago, not sure the full story there.  But in any case his bins (and a few of the other houses) are now located on what is the disputed land just next to our garden.  He's miffed as he has to drive up in his pick up truck to put stuff in the bins and apparently other people have been putting stuff into them.

I think lockdown may have affected his mental health.

Davesnave

scaredofdebt said:

..... his bins (and a few of the other houses) are now located on what is the disputed land just next to our garden.  He's miffed as he has to drive up in his pick up truck to put stuff in the bins and apparently other people have been putting stuff into them.

I think lockdown may have affected his mental health.

The gentleman may be seeking to gain adverse possession of the land, but if others are also using it for access or regular placement of bins, any such plan would fail. Excluding you from accessing it too would serve no useful purpose.

People do not need lockdown as an excuse for odd ideas. There were issues regarding ownership in a similar situation where I live, quite easy to sort-out in a legal sense. Getting others to understand and accept the legal situation took much longer!

princeofpounds

Ah ok so the guy is trying to win adverse possession of the land... makes it more clear why he is so het up about your gate. If he has not had exclusive possession of the land then his claim would fail. Your gate would blow a major hole in his plan.

scaredofdebt

Thanks again all, the plot thickens!
I now know the guys full name, he served a 16 month prison sentence a few years ago for fraud whilst running a company as director.  The local parish councillor has warned us against escalating things as he is a "man of ill-repute" we will see what the police say on Saturday.
I happened to bump into someone today who worked for the council planning department, talk about fluke encounter, he looked up the land on a system on his laptop and confirmed the council don't own the land but that the road is "adopted".
His thinking is the land hasn't changed hands recently, certainly not since the land registry became a legal requirement, the road was replaced by the by-pass in 1949.
He couldn't say for sure who owns the land, so still no further forward with that really.
The local parish council have a solicitor on the case but he's been trying to find out who owns the land for a few months now...........

scaredofdebt

So the police were in touch this morning, it was a telephone conversation with a local officer.
Not much to add other than he says the behaviour would amount to harassment and we need to document any future incidents with date, time etc. We have a crime reference number.
He suggests we contact a solicitor for some advice which we will be doing.
The barricade will be coming down over the weekend and will see what happens after that if anything.
I've got a CCTV camera which will be set up to monitor the gate.

Davesnave

Looks as if you have done the right things in a timely manner. There's no telling with odd-bods, but one doesn't usually gain any respect by treating them kindly or giving them the benefit of doubt....and I speak from experience!

Jeepers_Creepers

scaredofdebt said:

So the police were in touch this morning, it was a telephone conversation with a local officer.
Not much to add other than he says the behaviour would amount to harassment and we need to document any future incidents with date, time etc. We have a crime reference number.
He suggests we contact a solicitor for some advice which we will be doing.
The barricade will be coming down over the weekend and will see what happens after that if anything.
I've got a CCTV camera which will be set up to monitor the gate.

Good move with the CCTV. Does it record sound, and would it pick up a conversation at that gate? If not, have your phone recording too during any exchange.

Get sorted in your head what you will say, and stick to it - don't be led astray by any bizarre of manipulative claim he might make. Let him rant if he wants, and then calmly but firmly remind him of the facts; "We've (or whoevs) used this gate for the 47 years we've lived here. There's been a gate there all that time." "Blocking it is a criminal act". etc.