Advice on side access

ThisIsWeird

silvercar said:

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

And the OP has not come back on this

ThisIsWeird

swingaloo said:

ThisIsWeird said:

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.

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

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

Oh I can assure you I have read all your posts. We will have to agree to disagree about it making 'damned fine reading' though.

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

Well let me help you, how about-

'If he starts to ramble about "I need access...it's always been like this I am of the mind that ignorant and/or entitled folk need putting back in their box..." or anything else, just stare at him until he stops, and literally start again at the previous point; "You see this ref boundary line, yes...". Just as if you are talking to a very young child who is struggling with sums'.

 If he does, then it's, "Don't be silly - I LET you use it, but now I need to sort my boundary properly."

You need to ask, or seek a court order. Rommie will make it clear that all he needs to do is 'ask', if he needs reasonable access for repair or maintenance. (Or, Rommie can be bludy awkward, and force them to get a court order each time, if the neighbour continues to be difficult)

This neighb is either misguided, or is taking the pee. He needs to be told the facts of life. He needs to understand he has no 'right', so had better start being grateful and respectful. 

Also any other term you impose - no, you relative does not ride his bike past our cars, he walks it with care and a 'thank you'. No? Ok, gate locked, and police will be called if he trespasses.He doesn't agree? Then get a fencer to put up a sturdy gate, lock it, and call the police the moment he touches it. Fit extra cameras if needed.

I can demonstrate that in an instant by putting up a gate here. You touch it, and I'll call the police. Why don't you go down your other neighbour's alleyway and cross their land - see how far you get!" "So, are you going to carry on being silly about this, or are you going to start showing some appreciation for me allowing you to use my path?!"

"You'll carry on doing this, you say?! Well, that is trespass, as I have refused permission. How will you get past my gate? Do anything to it and that will be 'trespass with criminal property damage' - you really want to go there?!"
At any stage you can walk away, with a "I'm happy to discuss this later, once you've stopped being so silly/aggressive/talking over me/whatevs", and give them time to mull it over.


The OP has already said he is anxious and wants to be able to enjoy living there and living next door to someone who thinks it is ok to refer to them as 'Silly' and thinks they 'Need to be told the facts of life' is not conducive to a good neighbourly relationship. At the moment things can be sorted and moving forward there can be harmony but not id the OP starts quoting that the Police will be called  because a gate is touched. Not that the Police would get involved in that anyway.

The Op needs constructive advice rather than having lessons in how to be as rude and patronising to his neighbour.

You read all my posts! :-)

RHemmings

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).

Thanks. That's what I was thinking, but I was far from sure. 

I've read some of the cautionary tales of adverse possession. If a neighbour ever asked me to use part of my land, then I would certainly have written explicit permission from me to them, which is very carefully stored away. The case I remember was someone giving (I would wildly guess) permission for a neighbour to use part of their driveway. The neighbours put up a minor fence separating the two parts of the driveway. And, after 12 years, claimed it through AP. 

For this thread, I can't see anything explicit enough for me to be confident that something legally counting as consent having been given. 

user1977

ThisIsWeird said:

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? 

Why tough? It would be even tougher for the OP to rebut such a claim, if they've only moved in recently, and the access "right" has been regularly exercised since (at least) then.

RHemmings

user1977 said:

ThisIsWeird said:

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? 

Why tough? It would be even tougher for the OP to rebut such a claim, if they've only moved in recently, and the access "right" has been regularly exercised since (at least) then.

From what I read here: https://www.gov.uk/government/publications/easements-claimed-by-prescription/practice-guide-52-easements-claimed-by-prescription    a statutory declaration of truth by the neighbours that they have used the passageway without permission for the approximately 20 years (and same from previous owners if necessary) should suffice. It would then be for the OP to dispute that statutory declaration of truth, if they can. 

ThisIsWeird

user1977 said:

ThisIsWeird said:

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? 

Why tough? It would be even tougher for the OP to rebut such a claim, if they've only moved in recently, and the access "right" has been regularly exercised since (at least) then.

Are you suggesting that anyone in the neighbour's position only has to claim so, and the onus then falls on the owner to find evidence to rebut? If so, that is surely unfair.
In this case, the neighbour would simply have to claim that they used this path regularly and without interruption for 20+ years, with the owner being ignorant that they had no right to? Blimey. They don't have to evidence this in any way?
By a similar, unevidenced, token, why won't the owner's counter-claim of, "Nah - I gave my consent" not carry a similar weight?

ThisIsWeird

RHemmings said:

user1977 said:

ThisIsWeird said:

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? 

Why tough? It would be even tougher for the OP to rebut such a claim, if they've only moved in recently, and the access "right" has been regularly exercised since (at least) then.

From what I read here: https://www.gov.uk/government/publications/easements-claimed-by-prescription/practice-guide-52-easements-claimed-by-prescription    a statutory declaration of truth by the neighbours that they have used the passageway without permission for the approximately 20 years (and same from previous owners if necessary) should suffice. It would then be for the OP to dispute that statutory declaration of truth, if they can. 

Countered by a declaration of truth by the previous owner that they gave consent for its use.
Or else face a claim by the current owner for inaccuracy in the TA6.

user1977

ThisIsWeird said:

user1977 said:

ThisIsWeird said:

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? 

Why tough? It would be even tougher for the OP to rebut such a claim, if they've only moved in recently, and the access "right" has been regularly exercised since (at least) then.

Are you suggesting that anyone in the neighbour's position only has to claim so, and the onus then falls on the owner to find evidence to rebut? If so, that is surely unfair.
In this case, the neighbour would simply have to claim that they used this path regularly and without interruption for 20+ years, with the owner being ignorant that they had no right to? Blimey. They don't have to evidence this in any way?

Where did I say they didn't have to evidence it?

ThisIsWeird

user1977 said:

ThisIsWeird said:

user1977 said:

ThisIsWeird said:

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? 

Why tough? It would be even tougher for the OP to rebut such a claim, if they've only moved in recently, and the access "right" has been regularly exercised since (at least) then.

Are you suggesting that anyone in the neighbour's position only has to claim so, and the onus then falls on the owner to find evidence to rebut? If so, that is surely unfair.
In this case, the neighbour would simply have to claim that they used this path regularly and without interruption for 20+ years, with the owner being ignorant that they had no right to? Blimey. They don't have to evidence this in any way?

Where did I say they didn't have to evidence it?

You didn't, but you questioned whether it would be a tough call to make.
So, how would they evidence it? In a non-tough way?

RHemmings

ThisIsWeird said:

RHemmings said:

user1977 said:

ThisIsWeird said:

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? 

Why tough? It would be even tougher for the OP to rebut such a claim, if they've only moved in recently, and the access "right" has been regularly exercised since (at least) then.

From what I read here: https://www.gov.uk/government/publications/easements-claimed-by-prescription/practice-guide-52-easements-claimed-by-prescription    a statutory declaration of truth by the neighbours that they have used the passageway without permission for the approximately 20 years (and same from previous owners if necessary) should suffice. It would then be for the OP to dispute that statutory declaration of truth, if they can. 

Countered by a declaration of truth by the previous owner that they gave consent for its use.
Or else face a claim by the current owner for inaccuracy in the TA6.

That would certainly make things sticky and difficult. And perhaps big ££££ for lawyers. But, I don't think it remove the possibility that the right to use the land could be claimed in court. I'm not saying that it will necessarily go one way or the other, but I think it's a realistic possibility. 

Particularly if formal permission hasn't been given. The OP making a false statutory declaration of truth would have legal risks, as well as the moral issue.