Advice on side access

ThisIsWeird

thegreenone said:

@Rommie2021 What do the rear gates (yellow) open onto?

"Behind our houses is a kind of nature area/ open space." Each party has their own gate through to there. Yes, that means the neighbour's garden is not landlocked.

silvercar

I will ask the forum Team to move this to the housing board, where these sort of issues have appeared in the past. 

ThisIsWeird

swingaloo said:

ThisIsWeird said:

Thanks for the clarification, Swingaloo. I can confirm that this is exactly what I have suggested to Rommie. Exactly.

Hmm, I think you need to re-read your posts because what you have suggested is far from having an adult discussion. In fact you have advised the Op to be as confrontational as possible and belittle the neighbour completely.

Hmm, I have re-read my posts, and damned fine reading it makes for too, iIssm. Really, you should read it all too.

You could barely be more wrong in your assertion above, that I, "advised the Op to be as confrontational as possible and belittle the neighbour completely." That is absurd.

You have chosen one of my posts on page 2, and that deals with how to handle the situation if all the rational negotiations that I have outlined both before and after that post have failed due to the neighbour continuing to insist he has the 'right' to use that pathway at will, and threatens to continue doing so on the current terms. Even then, my suggestions are hardly 'confrontational' and 'belittling', but simply taking control of the situation. And for very good reason; if Rommie allows the neighbour to carry on as before, after having told him he does not have the right or his permission, then Rommie will be on very dodgy ground indeed; it will almost certainly damage his chance of selling, and he will also very likely have a smirking neighbour and tyre-screeching neighbour's son for company for as long as he lives there. Rommie will no longer want to live there, and he won't be able to sell.

So, having failed to ID any belittling belligerence in my posts, what do I actually see?:

"Calm...friendly...smiley...matter-of-fact...but insistent."

"You remain smiley and calm at all times, but insistent. Don't argue, don't discuss, don't justify"

"You be friendly and normal."

"the above is what I suggest should you hopefully have a friendly chat."

"It would be ideal - neighbourly - to have a conversation about the situation first"

"There is a 'compromise' position, where you continue to allow him to use that side access,"

"a possible way forward is to ask one in for a cuppa if they appear more reasonable, and to explain the issue to them, and they can then pass the message on to their dad."

"Make it absolutely clear that you don't want to make their dad's life difficult, but there needs to be recognition of the true situation here."

"Have a word with your dad, please. But the situation cannot continue as it is."

"If the offspring is as unaccepting and unreasonable as their dad, then don't argue, but bring it to a halt with something like, "Ok. That's a shame. I was hoping to sort this amicably, and find an acceptable way forward - I was fully prepared to make significant compromises that would suit us both. But it looks as tho' that is no longer possible. Thanks for your time", shake hands, and show them the door."

"Also make it clear from the off that you are open to compromise on access"

"As always, if they talk over you, or 'go off on one', you stop talking, look at them impassively, wait for them to stop, and go back to the point you were making. Ie, ignore any daft points by them - dismiss daft issues by not entertaining them."

"Still smile, still wave, still say you are open to talking about it."

(Admit it - you haven't read all my posts, have you? You really should.

RHemmings

Diverting from the long discussion about which language to use, I have a different viewpoint.

If the path in question has been used for a long period of time over 20 years, then it may be that there are rights due to long usage. 

From the description of the neighbour, they may have lived there for a long time. If not, then rights due to long usage may still be demonstrated if previous owners of the house will evidence that they used the path. 

I'm not saying that is definitely the case. And even if it is the case the neighbour may not be aware of that. But, if it comes down to lawyers and the neighbour hires a competent one, then this may be considered. 

There's a page here describing the concept of rights due to long use. It looks a decent article despite the glaring typo in the page title. https://bhwsolicitors.com/news/claiming-rights-long-user/ 

RAS

That article make it clear that you cannot acquire rights due to long usage if the activity has been done with the landowner's consent.

Looks as if the previous owner consented. So the neighbour would have to prove the opposite to have any chance of using this strategy.

RHemmings

RAS said:

That article make it clear that you cannot acquire rights due to long usage if the activity has been done with the landowner's consent.

Looks as if the previous owner consented. So the neighbour would have to prove the opposite to have any chance of using this strategy.

Just to be sure, is there something clear in the OP's postings that shows that consent has been given? It looks as if the next door neighbour has been using the path believing they have a right to, without specifically requesting consent. 

What is consent in a situation like this? I would guess it would be more than just the landowner not objecting. 

silvercar

Unless you look at the neighbours deeds, you don’t know if they have the right to use that path.

user1977

RHemmings said:

RAS said:

That article make it clear that you cannot acquire rights due to long usage if the activity has been done with the landowner's consent.

Looks as if the previous owner consented. So the neighbour would have to prove the opposite to have any chance of using this strategy.

What is consent in a situation like this? I would guess it would be more than just the landowner not objecting. 

Consent would be something more explicit, not merely a lack of objection (indeed an actual objection would stop the clock).

ThisIsWeird

RHemmings said:

RAS said:

That article make it clear that you cannot acquire rights due to long usage if the activity has been done with the landowner's consent.

Looks as if the previous owner consented. So the neighbour would have to prove the opposite to have any chance of using this strategy.

Just to be sure, is there something clear in the OP's postings that shows that consent has been given? It looks as if the next door neighbour has been using the path believing they have a right to, without specifically requesting consent. 

What is consent in a situation like this? I would guess it would be more than just the landowner not objecting. 

You raise a very good point, RH, although it has - to some degree - been covered in the main thread.
The OP wondered if his vendor had been eco with the truth in the TA6 over this access, and if not, whether a claim could be launched against him. Separately it was raised by other posters whether the neighbour could have gained an easement through time.
An answer given was that the OP should consider the current scenario as being, "you have given implied or actual permission to the neighbour to use it, so it's with your consent". Ergo, no easement is being acquired. But, the OP has only been there for a relatively short time. So that then leaves the previous owner, and whether they also 'gave permission' to the neighb over a longer period of time?
No idea, obviously, but I suggested that - should the neighbour threaten to pursue this literal avenue - the previous owner has a choice; either state that they, too, gave the neighb permission (a statement of truth), or else risk a claim for not declaring this issue in the TA6.
Thumbscrews.

ThisIsWeird

user1977 said:

RHemmings said:

RAS said:

That article make it clear that you cannot acquire rights due to long usage if the activity has been done with the landowner's consent.

Looks as if the previous owner consented. So the neighbour would have to prove the opposite to have any chance of using this strategy.

What is consent in a situation like this? I would guess it would be more than just the landowner not objecting. 

Consent would be something more explicit, not merely a lack of objection (indeed an actual objection would stop the clock).

The onus would surely be on the claimant - the neighbour - to provide pretty decent proof (on the balance of probabilities?) that they used this alleyway knowing it was without the owner's permission? 
Surely a tough call?