Access to terraced back garden

s4uch1e

My mother and father have lived in their terraced house for over 30years with full access to their back garden through the neighbours end of terrace property(driveway) allowing them to their garage and shed for his motorcycle in the back garden. I should say this is in Scotland incase that affects what is allowed in law.

The owner next door passed away around 6years ago and the property sold .it was purchased by the son of the lady who stayed on the other side of the driveway Until recently (4months) my father was still getting access to his back garden through that property, but now the new owner has installed a 6ft fence the full length of the garden stopping him from getting into his back garden. 

My father is obviously upset believing he has a right too access as he has used this for 30years. He has been in contact with a lawyer who says he is legally entitled as he has used it for so long, I'm worried the lawyer might just be stringing him along . 
I'm no expert but I thought once the new owner bought the property he could put up a fence if he wished. 

Any advice much appreciated 

The_Unready

Post deleted due to incorrect information. 

user1977

The_Unready said:

You'll need to see the deeds for both your dad's property and your neighbour's property to determine who has access rights to the area under dispute.

Download these from Land Registry for £3 a pop.

No, because (a) this is Scotland, where it's called the Land Register (assuming both properties are registered there - quite likely the parents' isn't if they bought over 30 years ago) and in any event (b) the OP is suggesting that the access rights may have been created by prescription i.e. by having been exercised for over 20 years, so (probably) not ones which are narrated in the titles anyway.

user1977

s4uch1e said:

He has been in contact with a lawyer who says he is legally entitled as he has used it for so long, I'm worried the lawyer might just be stringing him along.

Why on earth would the lawyer be "stringing him along"? The lawyer is correct.

Grizebeck

Then they should take the relevant legal remedy in Scotland to restore his access
In England this would be in the form of an injunction. I would be going for an on notice injunction ( in England )

sheramber

If your father has a right of access or a ROW then the new owner can put up a fence as long as he still allows your father access- either by a gate or a key for a locked gate.

A ROW would be stated on your father deeds. 

theoretica

user1977 said:

The_Unready said:

You'll need to see the deeds for both your dad's property and your neighbour's property to determine who has access rights to the area under dispute.

Download these from Land Registry for £3 a pop.

No, because (a) this is Scotland, where it's called the Land Register (assuming both properties are registered there - quite likely the parents' isn't if they bought over 30 years ago) and in any event (b) the OP is suggesting that the access rights may have been created by prescription i.e. by having been exercised for over 20 years, so (probably) not ones which are narrated in the titles anyway.

If the property isn't in the Land Register, and he doesn't have the deeds (or copies) in a file somewhere, check the Register of Sasines. 

Maybe the only/best access rights will be ones established through use - but still very worth checking the deeds to see if there is anything useful.

PS - this is the relevant act:

https://www.legislation.gov.uk/ukpga/1973/52

user1977

sheramber said:

A ROW would be stated on your father deeds. 

...unless it's been established by prescription....

user1977

theoretica said:

user1977 said:

The_Unready said:

You'll need to see the deeds for both your dad's property and your neighbour's property to determine who has access rights to the area under dispute.

Download these from Land Registry for £3 a pop.

No, because (a) this is Scotland, where it's called the Land Register (assuming both properties are registered there - quite likely the parents' isn't if they bought over 30 years ago) and in any event (b) the OP is suggesting that the access rights may have been created by prescription i.e. by having been exercised for over 20 years, so (probably) not ones which are narrated in the titles anyway.

If the property isn't in the Land Register, and he doesn't have the deeds (or copies) in a file somewhere, check the Register of Sasines. 

I would guess dad's solicitor has already thought about checking the deeds.

ThisIsWeird

What would the OP's father need to do to demonstrate an acquired right, presumably a 'prescriptive easement' (unless Scotland is different?)?

I presume the dad would have had to have been using this route for at least 20 years (tick) but without the permission of the owner. Hmm. How do you demonstrate that you used the pathway without the permission of a deceased person who cannot confirm or deny this? 

user1977

ThisIsWeird said:

What would the OP's father need to do to demonstrate an acquired right, presumably a 'prescriptive easement' (unless Scotland is different?)

"Servitude", not "easement".

Usually proved by affidavit evidence, which should be relatively straightforward given the benefited property has been in the same ownership for the whole period (can get more tricky if there have been changes of ownership). Others who are familiar with the property (presumably the OP themselves) could also provide evidence.

It can be registered in the Land Register if they are satisfied with the evidence provided:

https://rosdev.atlassian.net/wiki/spaces/2ARM/pages/252477447/Servitudes#Servitudes-PrescriptiveServitudes