Help! Neigbour has built decking over ROW

takoo

Hi Whist
Some points:
1 Are you and your neighbour in the same building as lessees
2 What does your lease(s) say about works to property etc?
3 Are you both lessees of a separate landlord or is your neighbour your landlord?
4 Do other persons have right of way?
5 Have you spoken to the landlord or his/her managing agent?

If the latter do not act I guess that you will need to see 1) the CAB or 2) your original solicitors (unless they are not independent of the neighbour). In the event it goes to a more formal dispute you may find that the CAB now can recommend a mediation service.
Good luck
Takoo

whist

1 Are you and your neighbour in the same building as lessees

Yes. We both have leases but also have a share of the freehold with 2 other flats.
2 What does your lease(s) say about works to property etc?

There is a clause in her lease which states she cant do anything which would cause a nuisance to the neighbours .
3 Are you both lessees of a separate landlord or is your neighbour your landlord? We both have share of freehold
4 Do other persons have right of way? I guess the freeholder ( ie the four flats)

I didn't get much joy with CAB.

Yorkie59

The area or Right of Way was clearly defined & paved. If this is the case then the fact that the decking now prevents disabled access might be the sledgehammer of choice.
By restricting access along the ROW to 'able bodied persons only' your former neighbour may have made a serious miscalculation.
I would use this as a lever and resist all temptation to cut the offending part of the decking.
I would ask Council again with this is mind - they take a dim view to restricting access for the disabled. (My 16 year old lad is in a wheelchair & when we pointed out he had to travel down the road 5 doors due to driveways not being opposite each other, they arranged for dropped kerbs.
CAB may be more forthcoming if you take this stance as well.
Good luck.

Debt_Free_Chick

First off - who owns the land on which the decking was built? Presumably the neighbour?

Secondly - who gives you the ROW? Again ... the neighbour?

Thirdly, what - precisely - does the easement give you? Is it a ROW on foot only? Or does it include other means to access the property e.g. wheelchairs, pushchairs etc.

I have an easement given by my neighbour giving me ROW by foot or vehicle. But you must be precise about what your easement allows you. If it states on foot only, then arguably, there is no ROW for a pushchair, wheelchair or wheelbarrow. So look carefully at the wording.

Then ... you can only enforce the right you have against the person granting the easement. This is likely to be the owner of the land, but could be the landlord if the neighbour does not actually own the land.

So ... be clear about your ROW rights and then be clear about the person who has granted them.

Do not cut the decking under any circumstances. Having a ROW does not allow you to commit criminal damage. Unfair though it seems, you have to take the right lawful route to enforce your ROW ..... you can't just "take it" in anyway you wish.

If you want help interpreting the easement, post the precise words from the deeds up here.

HTH

Debt_Free_Chick

Yorkie59 wrote: »

The area or Right of Way was clearly defined & paved. If this is the case then the fact that the decking now prevents disabled access might be the sledgehammer of choice.
By restricting access along the ROW to 'able bodied persons only' your former neighbour may have made a serious miscalculation.

Although, if this is a private ROW (which it seems to be) access is restricted to whoever the owner wants. No-one is required to give anyone a ROW over their land. This one is probably historical as the land was originally "one parcel" but has been split up, so that part of the original land now requires use/access by the owners of two different properties.

This is more likely to be an easement, rather than a "Public" right of way.

whist

Debt_Free_Chick wrote: »

First off - who owns the land on which the decking was built? Presumably the neighbour?

Secondly - who gives you the ROW? Again ... the neighbour?

Thirdly, what - precisely - does the easement give you? Is it a ROW on foot only? Or does it include other means to access the property e.g. wheelchairs, pushchairs etc.

HTH

Exact word on the lease is " A ROW at all times and for all purposes over and along the pathway shown on the plan coloured brown"
The pathway coloured brown is paved but has now been decked over. These are the exact wording on my lease and my neighbours lease ( I have a copy of hers). It doesn't specify who to so I assume its not just to myself. Does that make it a public ROW?

To complicate matters , we along with 2 other flats own a share of the freehold. The land is owned by the freehold company of which we all are directors. Although we have a freehold company , its effectively ineffective because we dont meet regularly , dont have an account etc.

It is a ROW which is now restricted to able bodied people. This is certainly the angle I am pursuing but since my neighbour has ignored all letters by myself and the council ( the council say planning permission is required), I am getting to the end of my tether.

HugoSP

The council is not fulfilling its obligations to the public if they are not pursuing it.

You need to write a letter to the enforement department who should act on your behalf, if they don't do anything get in touch with your local councillor.

BobProperty

whist wrote: »

Exact word on the lease is " A ROW at all times and for all purposes over and along the pathway shown on the plan coloured brown" ....

Debt Free Chick's posts makes a lot of sense about this situation. My bold above plus DFC's comments would, IMHO, make your neighbour's defence very weak.
On a lighter note, have you, or do you have access to, either a horse or a trials bike?

Debt_Free_Chick

whist wrote: »

Exact word on the lease is " A ROW at all times and for all purposes over and along the pathway shown on the plan coloured brown"
The pathway coloured brown is paved but has now been decked over. These are the exact wording on my lease and my neighbours lease ( I have a copy of hers). It doesn't specify who to so I assume its not just to myself. Does that make it a public ROW?

No a public ROW wouldn't be in a lease. A public ROW exists without anything in the lease and would allow any member of the public to use the path. Public ROWs are typically footpaths across private land and are marked as such on any OS map.

My guess is that this easement is given by the freeholder. Again, this should be clear in the deeds/title. It might refer to a "grantor" and a "grantee". You would be the grantee and the person giving you the ROW is the grantor. It's vital that you identify the grantor as this is the person you complain to.

It works like this ....

I (grantor) own some land. You (grantee) buy the land behind me. I give you a ROW (easement) to use a path down the side of my land to get to your land.

However, the neighbour next to me, blocks this path so you can't use it.

In law - you (grantee) complain to me (grantor) as I am not fulfilling my legal obligation, which is to allow you access. I then take action against my neighbour, as he has committed a trespass by placing/building an obstruction on my land.

So .... you must identify who the grantor is and take the matter up with them. You have no right, in law, to take direct action against your neighbour as they owe you no legal/contractual obligation.

To complicate matters , we along with 2 other flats own a share of the freehold. The land is owned by the freehold company of which we all are directors. Although we have a freehold company , its effectively ineffective because we dont meet regularly , dont have an account etc.

If it's a Ltd company, it can't be "ineffective" as it has statutory obligations under the Companies Acts. And you all, as Directors, are liable. This needs sorting!

And ... if the freehold company is the grantor of the easement, then you will need it be pretty effective, pretty soon :eek:

It is a ROW which is now restricted to able bodied people. This is certainly the angle I am pursuing but since my neighbour has ignored all letters by myself and the council ( the council say planning permission is required), I am getting to the end of my tether.

Never mind the able-bodied people bit - the easement gives you a ROW "all times and for all purposes over and along the pathway". For all purposes would include machinery, bicycles, trolley ..... to my mind, it includes vehicles too, but obviously only if the path is wide enough. However, the key things are "at all times", "for all purposes" and "the pathway".

The pathway has been removed/obstructed. This is the point you make to the grantor as you no long have access "at all times for all purposes". Leave the disabled issue out of it - it only confuses your basic legal position, so stick to that.

Also, leave out the planning permission. The council are only concerned with whether the development (decking) meets planning laws and planning laws do not take account of private rights and easements. These are civil, private matters between the two parties (grantor and grantee). In theory, I can get PP to build on your land. That doesn't give me the right to do so, however and I certainly can't wave the PP at you and tell you that I can go ahead

Leave the council to pursue the breach of PP. Your neighbour may get PP, but that won't solve your ROW issue.

So .. who is the grantor of the easement?

whist

Debt_Free_Chick wrote: »

So .... you must identify who the grantor is and take the matter up with them. You have no right, in law, to take direct action against your neighbour as they owe you no legal/contractual obligation.

If it's a Ltd company, it can't be "ineffective" as it has statutory obligations under the Companies Acts. And you all, as Directors, are liable. This needs sorting!

And ... if the freehold company is the grantor of the easement, then you will need it be pretty effective, pretty soon :eek:

So .. who is the grantor of the easement?

The grantor/lessor is the freehold company. And I am the lessee as well as a quarter lessor.

It certainly complicates matter trying to get the leashold company i.e myself and my neighbours to sort it out. I am the only one affected by this and even if we have legal obligations, how do I get (us) to fullfill it. 2 of the flats are now rented out. Do I write to the freehold company and then sue if they dont do anything?

It's very confusing .