Avoiding shared boundary when putting up a gate?

blackstar

Hi all

Hoping for some advice. We live in Scotland so laws maybe different.

This is sort of a boundary issue but maybe it's not?

We recently moved into a new home that we bought and our neighbour uses our driveway rather than theirs to take their bins in and out as they choose to keep their bins in their back garden rather their front garden like most people. If they kept their bins in the front garden it would be easier for them to use their driveway rather than ours. That's besides the point. 

We don't want to be petty and get on with them well but after discussions on this they want to keep using our driveway to take their bins in and out. But we are aware that after sometime we will loose full right of this part of our property and it will become and right of access area which we don't feel is fair.

So what we would like to do is to put gate on our driveway around the tiny little yellow area above the black line where the arrow points too which is the shared area (area maked H). This little shared yellow area is just in front of a tunnel leading to theirs and our back gardens. They keep their bins in their back garden and bring them in and out though the tunnel and up and down our drive way rather than through their front garden. 

So our questions are

A) should we just use our best judgement and err on the side of caution maybe and keep within a obvious and well within the pink area of our driveway which is ours when we put up the gate? 

If the neighbour disputed this and said its within the shared yellow would the onus be on him to goto court and prove this and we can keep the gate until we are ordered to remove it?

Or 

try and get a solicitor to hire a surveyor to come out and do measurements to give us exact measurements where the pink boundary meets the yellow boundary?

If we do that what type of solicitor do we need? What's the costs for something like this? 

The title deeds don't give any measurements they just say 1/250 is the scale and have been told you can't scale accurately as lines could be >100mm thick? But if we keep well within our driveway the gate surley we would not be anywhere near the yellow shared area?

What are others advice in this please. If you were going to put up a gate for whatever reason with these title deeds what would you do? 

Please find attached some pictures. There are no measurements on the deeds or on the 

Burden Entry 2. 

I called registration of Scotland and asked about the measurements but they said sometimes deeds just don't include them and just give a rough idea where the boundaries are. But surely there must be measurements somewhere if they knew where to paint the pink and yellow on the deeds?

But again what would others do in my situation just make the best judgement to keep within the pink and make the best guess, erring on the side of caution or try and find a solicitor who can hire a surveyor and get exact measurements to be 100%? If that's even possible? Is it? What type of solicitor would I need to use for this.?

On another note we noticed that our pink area also proceeds into the pavement and half of the road in front of us and we ask Registers of Scotland  (where the deeds are from) and they said yes the pavement and part of the road is front if you do belong to you, which I find really odd. But they were adamant it does?

Thanks all

ThisIsWeird

Hi Blackstar.

When you say 'new home', what do you mean - new to you, or a brand new build? Do you have a copy of the deeds? If so, that should make clear whether anyone else has a Right of Way over any of your land (mind you, I don't know if such things are different in Scotland*)

On a different note, I'm afraid I do not follow what's on this plan. I don't know where your house is, your neighb's, your garden, their garden, your driveway, their driveway, etc. Could you clarify, please, possibly by drawing out a map of your own? Or, by posting a Google satellite image (tho' I'd understand if you didn't want to).

You mention that the 'yellow' is 'shared'? If so, the extent of this sharing - the rights of each party - should be fully described in writing in your deeds? What does it say? And what is the matching 'green' strip?

And, how does your neighbour's garden relate to these strips? Is the 'yellow' the only way they can access their garden (other than through their house)?

So, check your deeds - see what it says. If it's a new build, perhaps the builder could explain this to you too?

(*Commiserations on this eve, by the way...)

blackstar

Thanks.its an ex council house.
Sadly the deeds give no mention of the measurements. Just the pink is ours and green and yellow shared.

the_lunatic_is_in_my_head

blackstar said:

But we are aware that after sometime we will loose full right of this part of our property and it will become and right of access area which we don't feel is fair.

If you are referring to a prescriptive easement my understanding is one isn't created where access is by permission, an email, text or something to say they can use your garden for moving their bins should suffice as proof of an agreement. 

Not sure if the laws are different in Scotland though. 

https://thesolicitorsgroup.co.uk/news/2022/prescriptive-easements-an-update

A legal easement can be granted by express grant (deed of grant, conveyances and transfers etc), or acquired through the common law, by lost modern grant or under the Prescription Act 1832.

In each case where it has been acquired (rather than expressly granted), there must have been at least 20 years’
continuous use or enjoyment ‘as of right’. To be clear, it must have been used nec vi, nec clam and nec precario (without force, secrecy or permission).

Brie

You say gate but do you mean a fence/hedge/other barrier?  In that one that doesn't move?  From what you've said I would think that needs to be on your side of the yellow shared portion.  Does that leave you enough room to park your car?  If you were thinking of putting a barrier of any sort between the yellow and green bits, even if it's more on your side, you would be blocking an agreed right of way.  

And do your deeds say anything about the use of the passage between the two properties.  Sometimes it will be for people only, or people and bicycles but nothing else.

But I am not a lawyer, surveyor and don't live in Scotland.

blackstar

If I just put a gate or fence on my driveway in the pink that's ok isn't it? There is no right if access on my driveway. 
It's just I'm not sure exactly where the pink meets the yellow 

RAS

Since you've not told anyone what the pink is, impossible to say. You also need to look at your deeds.

Emmia

blackstar said:

If I just put a gate or fence on my driveway in the pink that's ok isn't it? There is no right if access on my driveway. 
It's just I'm not sure exactly where the pink meets the yellow 

You need to check your deeds, it may be your driveway, but your neighbours may have the right to cross it, preventing you gating it.

theoretica

Just as it is 'your' bit of road, but you could not put a fence around it and people will have the right to use it!

LightFlare

A picture will definitely help people visualise the question/problem/solution better

FlorayG

I don't know in Scotland but in England you can grant 'permission' subject to restrictions, which means the other person never gets 'right of access'. So you could make an agreement access is allowed only Monday to Friday, or even for 51 weeks of the year. Then you close the gate on those 'restricted' times
This is assuming that you don't mind your neighbour using your drive and you're only worried about him getting rights over it