CONSERVATORY/BOUNDARY/RIGHT OF WAY

KEMYST

Hi. We had a conversation with a land litigation solicitor yesterday. I was very pleased but I have now considered what my wife relayed to me and the issue now is not clear cut. (They wanted £800 to start looking at things.). But he said that the issues were so obvious that there was no point in instructing a solicitor, The issue is over the right of way. I came away `over the moon` because our easement states quite simply.." There is a right of way, with our without vehicles for the benefit of No.2 over No.1."
There is nothing else.

The impression I came away with was that there should be rider on the easement that construction traffic etc. was allowed through the right of way. Since this allowance was not there, they could not use the RoW to bring all the materiel in and all the rubble out. But speaking to my wife this morning, this was not quite what he said. It`s a question of degree.

Generally can they do this? I think what he was saying was about the `excessive` use of the right of way. If that is the case, then I cannot stop the building until excessive use takes place can I? In other words, I cannot stop the use of the RoW for construction before construction takes place? Does that make sense?

Section62

KEMYST said:

Hi. We had a conversation with a land litigation solicitor yesterday. I was very pleased but I have now considered what my wife relayed to me and the issue now is not clear cut. (They wanted £800 to start looking at things.). But he said that the issues were so obvious that there was no point in instructing a solicitor, The issue is over the right of way. I came away `over the moon` because our easement states quite simply.." There is a right of way, with our without vehicles for the benefit of No.2 over No.1."
There is nothing else.

The impression I came away with was that there should be rider on the easement that construction traffic etc. was allowed through the right of way. Since this allowance was not there, they could not use the RoW to bring all the materiel in and all the rubble out. But speaking to my wife this morning, this was not quite what he said. It`s a question of degree.

Generally can they do this? I think what he was saying was about the `excessive` use of the right of way. If that is the case, then I cannot stop the building until excessive use takes place can I? In other words, I cannot stop the use of the RoW for construction before construction takes place? Does that make sense?

If you think there is an angle that you can stop the conservatory being built because builders and materials cannot use the right of way then no, there is no hope of that.

The only thing you can do is to take action against the neighbour if they go ahead and put in an outward opening door.


I still think it would be a more productive use of your time to look at options for changing the RoW so it is less intrusive to you.

There is a win-win situation possible here for less cost than a few hours of legal opinion.

Mojisola

KEMYST said:

our easement states quite simply.." There is a right of way, with our without vehicles for the benefit of No.2 over No.1."
There is nothing else.

The impression I came away with was that there should be rider on the easement that construction traffic etc. was allowed through the right of way.

The easement allows the neighbours, their friends, relatives, workmen, parcel delivery people and anyone else they want to access their property to do just that.

KEMYST

Yes I know that. We have never claimed anything different.....but pumping concrete! 

Norman_Castle

Define excessive use. They're replacing one small building with a conservatory. Presumably this is the only access. If they repeatedly rebuilt the conservatory, started a business, hobby or social group which used the access more than most would consider normal you could claim excessive use but one building project isn't excessive.

As they are building up to the boundary where the door opens removing part of the fence at the start of the row for the duration of the work might be easier for everyone even if the row remains where it is. Doing this could be used as an introduction to a permanent access in a better location and remove the need for any door from the conservatory.

Would you prefer the row moved from its current location to nearer to where it starts to cross your property? If you would try talking to the neighbour about it. Presumably the original row was a gate into an area of their garden which has now been built on creating the problem of which way the door opens. Assuming the row runs alongside their fence an opening could be made elsewhere and the access through the conservatory blocked without legally moving the row.

 

Section62

KEMYST said:

Yes I know that. We have never claimed anything different.....but pumping concrete! 

Would you prefer the concrete to be conveyed over the RoW in (rusty and leaking) wheelbarrows?

Pumping it will reduce the use of the RoW - assuming they use pipe at ground level (rather than a long reach pump) then the only access requirement is to set up and dismantle the pipes. The job will also be finished much faster than if a more manual method had to be used instead.

With the neighbour having a vehicular right, the use of wheelbarrows would be a perfectly legitimate use.


This might be a good time for you to take stock and think about what it is you are trying to achieve.  Do you want to stop the building completely?  Do you want to make it as difficult as possible?  Do you just want to make sure the neighbour only uses the RoW as they are legally entitled to do.

Looking into modifying the RoW (if possible) has been suggested by several posters, but you don't seem keen to consider this option - even though it might be the best one. Do you not feel it would be better to have a long-term solution to the issue rather than focusing on use of the RoW during the building work?

Section62

Norman_Castle said:

Assuming the row runs alongside their fence an opening could be made elsewhere and the access through the conservatory blocked without legally moving the row.

 

In the OP's position I wouldn't entertain the idea of creating a new opening and blocking the old one without going through the legal process to formalise it.

Otherwise it will cause questions to be asked in future property sales, and risks the neighbour ending up with two access points rather than just one.

Mojisola

Section62 said:

In the OP's position I wouldn't entertain the idea of creating a new opening and blocking the old one without going through the legal process to formalise it.

Otherwise it will cause questions to be asked in future property sales, and risks the neighbour ending up with two access points rather than just one.

And insist that the neighbour pays all the legal bills for altering the ROW on both sets of deeds.

Norman_Castle

Section62 said:

Norman_Castle said:

Assuming the row runs alongside their fence an opening could be made elsewhere and the access through the conservatory blocked without legally moving the row.

 

In the OP's position I wouldn't entertain the idea of creating a new opening and blocking the old one without going through the legal process to formalise it.

Otherwise it will cause questions to be asked in future property sales, and risks the neighbour ending up with two access points rather than just one.

If there's a row alongside your boundary are you obliged to stay on it, only accessing and leaving it at its start and finish or can you leave it at any point?

Section62

Norman_Castle said:

Section62 said:

Norman_Castle said:

Assuming the row runs alongside their fence an opening could be made elsewhere and the access through the conservatory blocked without legally moving the row.

 

In the OP's position I wouldn't entertain the idea of creating a new opening and blocking the old one without going through the legal process to formalise it.

Otherwise it will cause questions to be asked in future property sales, and risks the neighbour ending up with two access points rather than just one.

If there's a row alongside your boundary are you obliged to stay on it, only accessing and leaving it at its start and finish or can you leave it at any point?

1) It depends whether the deeds state anything about the points of access/egress.

2) It depends whether the RoW is actually alongside the boundary, or whether there is a strip of land excluded from the RoW between the two.

3) It depends who owns any boundary feature which would need modification to allow access at other points.


In the OP's case there is a 3' retaining wall to be negotiated to get from their patio into the neighbour's garden, with a wooden fence on top.  I'm not sure the OP has actually mentioned who owns/is responsible for the retaining wall.


And thinking further about the 3' level difference, it must mean the internal layout of the conservatory is an absolute nightmare with some kind of steps required to get from the side entrance (RoW) level to the garden level - so more loss of internal space on top of that required to facilitate a largely pointless door onto the OP's patio.

It really needs a 'blank sheet' design approach, with both neighbours cooperating to get the best overall result.