Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@.

Search
  • FIRST POST
    • Zippy Badger
    • By Zippy Badger 11th Aug 18, 2:12 PM
    • 7Posts
    • 1Thanks
    Zippy Badger
    Right of Way how to Extinguish the Easement
    • #1
    • 11th Aug 18, 2:12 PM
    Right of Way how to Extinguish the Easement 11th Aug 18 at 2:12 PM
    We bought a lovely Oast House last year and have one narrow drive to access it.
    Originally next door there were 3 small cottages with 2 of them having no road access so on the Tile Deed of the Oast in1953 it gave right of way access down our drive, the Oast drive so they could reach their cottage. All good so far...

    Back to present day... our neighbours bought all the 3 cottages and coverted them into one, cottage even renamed the cottage 20 years ago.
    They had planning permission and built their own drive with a turning area and garage and also have a separate path they can walk to the cottage on from the road.
    However they still continue everyday to drive down our narrow drive to park next to their house, this is opposite our front door, in an old range rover.
    They are willing to give up their rights and are asking for our 2 acre of paddock plus 25,0000 if we want to barter the right of way. Clearly they see this as bargaining chip rather than a neighbourly issue. They are not very easy to talk to!!
    The former owners laughed at the suggestion and put up with it and there is no way
    we want to give them so much...
    They have 3 means of access to their property now (including our drive) and a gate which is locked at night. We have one small drive with no gate to lock due to their access rights.

    I wonder if we can use lack of necessity (used in the Public Highway Act 1980) as a way to extinguish their easement? Using our drive is a great convenience to them not a necessity and constitutes a hugh inconvenience to us.

    Further they refuse to pay for any maintenance to the drive new quote 8000 which is partly needed by their landrover churning up the drive!
    Any advise about our legal rights to get our drive back would be welcome... Thanks
Page 2
    • Cakeguts
    • By Cakeguts 11th Aug 18, 7:17 PM
    • 5,042 Posts
    • 7,575 Thanks
    Cakeguts
    Who owns the land that they park on?
    • unforeseen
    • By unforeseen 11th Aug 18, 7:29 PM
    • 3,032 Posts
    • 3,958 Thanks
    unforeseen
    Many people would have young children or dogs or the like that would "escape" if a gate was left open though.....
    Originally posted by moneyistooshorttomention
    Then it is up to the service t tenement to ensure that their charges are kept under control and not liable to escape.
    • moneyistooshorttomention
    • By moneyistooshorttomention 11th Aug 18, 7:31 PM
    • 16,844 Posts
    • 46,499 Thanks
    moneyistooshorttomention
    Who owns the land that they park on?
    Originally posted by Cakeguts
    I wouldnt mind betting you've hit the nail straight on the head here - as initial post (indicating they are parking opposite OP's front door) would seem to indicate it's likely they are parking on the ROW (ie they are most definitely legally in the wrong if so).

    If that is the case - then don't block the ROW - but do put up a bollard to prevent parking.
    ****************
    • Davesnave
    • By Davesnave 11th Aug 18, 8:13 PM
    • 26,411 Posts
    • 95,476 Thanks
    Davesnave
    I wouldnt mind betting you've hit the nail straight on the head here - as initial post (indicating they are parking opposite OP's front door) would seem to indicate it's likely they are parking on the ROW .
    Originally posted by moneyistooshorttomention
    Do you really think the OP would have this neighbour parking on their land as an added inconvenience and yet not mention it in their post?
    A garden is never so good as it will be next year....
    • Annie35
    • By Annie35 11th Aug 18, 10:32 PM
    • 237 Posts
    • 195 Thanks
    Annie35
    Do you really think the OP would have this neighbour parking on their land as an added inconvenience and yet not mention it in their post?
    Originally posted by Davesnave
    Because it's a ROW dave! It's important! They drive down it & it can't be removed, because it's a ROW Y'no! A ROW! To paraphrase Richard Burton 'a ROW is a ROW is a ROW' it's very important because it's a ROW, don't you know Dave, a ROW!

    & that's why the op may not necessarily know if they have vehicular & parking rights.... cos it's a ROW (Just in case we'd forgotten)

    ROW threads are always so serious
    • Davesnave
    • By Davesnave 12th Aug 18, 7:03 AM
    • 26,411 Posts
    • 95,476 Thanks
    Davesnave
    ROW threads are always so serious
    Originally posted by Annie35

    Oh, this one's funny all right. The OP's main question was:


    "I wonder if we can use lack of necessity (used in the Public Highway Act 1980) as a way to extinguish their easement?"



    Did the OP quote the relevant section of the Act? No, they expected respondents to search through the whole blooming thing!

    That's hilarious.
    A garden is never so good as it will be next year....
    • unforeseen
    • By unforeseen 12th Aug 18, 9:23 AM
    • 3,032 Posts
    • 3,958 Thanks
    unforeseen
    I ignored that bit as the Highways Act didn't apply unless the OP was hoping to get the road adopted.

    If they were then a ROW and it's limitations would be pointless.
    • moneyistooshorttomention
    • By moneyistooshorttomention 12th Aug 18, 10:16 AM
    • 16,844 Posts
    • 46,499 Thanks
    moneyistooshorttomention
    I ignored that bit as the Highways Act didn't apply unless the OP was hoping to get the road adopted.

    If they were then a ROW and it's limitations would be pointless.
    Originally posted by unforeseen
    I'm not clear what you are saying here??
    ****************
    • shortcrust
    • By shortcrust 12th Aug 18, 10:37 AM
    • 2,127 Posts
    • 3,251 Thanks
    shortcrust
    I thought it was pretty simple. You can't really get a right of way that's in use removed without the consent of those who benefit. Is that not the case?
    • xylophone
    • By xylophone 12th Aug 18, 10:43 AM
    • 26,872 Posts
    • 16,026 Thanks
    xylophone
    Any advise about our legal rights to get our drive back would be welcome... Thanks
    Your drive is not being taken away!

    Your neighbours are exercising their legal right to use your drive on the basis of the RoW - (presumably they are not parking on your drive but on their own land)?

    What puzzles me is the fact that you bought this property knowing that the RoW was in existence (and even that the neighbours had approached the previous owners with a proposal to give up their rights for the sum of 25,000 (not 250,000?) and the transfer to them of the two acre paddock.

    They're "avin a larf"?

    It is unfortunate that they choose to behave in an unneighbourly (even deliberately provocative?) fashion but you did purchase in full knowledge of the situation.

    I don't see however that they have the right to damage your drive
    in using it for access and I should think that you could seek legal redress if they do?
    • bouicca21
    • By bouicca21 12th Aug 18, 11:01 AM
    • 3,952 Posts
    • 6,254 Thanks
    bouicca21
    It's all speculation until OP tells us the exact terms of the RoW.
    • Davesnave
    • By Davesnave 12th Aug 18, 1:55 PM
    • 26,411 Posts
    • 95,476 Thanks
    Davesnave

    I don't see however that they have the right to damage your drive in using it for access and I should think that you could seek legal redress if they do?
    Originally posted by xylophone
    If the lane's surfacing is so poor that driving a Land Rover over it causes damage, then it needs repair, not a legal case.

    Whether the neighbour has an obligation to contribute should be set out in the property's title documents. As bouicca says, without input from the OP, people are just guessing.
    A garden is never so good as it will be next year....
    • Zippy Badger
    • By Zippy Badger 12th Aug 18, 5:14 PM
    • 7 Posts
    • 1 Thanks
    Zippy Badger
    Thanks for all your comment... The gate with code that keeps changing sounds good...
    They have the right to drive over/down the drive but not to park. The Parking space is their land just opposite our door but off of the drive.
    Most of the case law that I've read online helps people get and keep their ROW but not much on how to extinguish the ROW... We will get legal advise and I will post again ...not holding out much hope but its worth a try.
    • Zippy Badger
    • By Zippy Badger 12th Aug 18, 5:21 PM
    • 7 Posts
    • 1 Thanks
    Zippy Badger
    Public Highways Act 1980
    Hilarious?
    The Public Highway Act 1980: Section 118, Section 5 (a) {Extiguish Public Right of Way} on the grounds that it is no longer needed......
    • Zippy Badger
    • By Zippy Badger 12th Aug 18, 5:24 PM
    • 7 Posts
    • 1 Thanks
    Zippy Badger
    Oh yeah... Section 116 of HA(1980) uses the words 'deemed to be unnecessary'
    Thx
    • Mojisola
    • By Mojisola 12th Aug 18, 5:24 PM
    • 29,968 Posts
    • 77,015 Thanks
    Mojisola
    There would be nothing stopping the neighbour wedging the gate open when he passes through and leaving it like that.

    The dominant owner is under no obligation to close the gate.

    A gate in itself is not considered a substantial interference but a locked gate may. It depends on the wording of the easement if it is for all people who need to access the cottages E.G. postman, milkman etc then a locked gate can be considered a substantial interference as they are unable to use the ROW.
    Originally posted by unforeseen
    Thanks for all your comment... The gate with code that keeps changing sounds good...
    Originally posted by Zippy Badger
    No, it doesn't - unless you want to be on the wrong end of the law.
    • lincroft1710
    • By lincroft1710 12th Aug 18, 5:59 PM
    • 11,108 Posts
    • 9,457 Thanks
    lincroft1710
    Hilarious?
    The Public Highway Act 1980: Section 118, Section 5 (a) {Extiguish Public Right of Way} on the grounds that it is no longer needed......
    Originally posted by Zippy Badger
    As your neighbour is using it then it could be argued it is needed.
    • unforeseen
    • By unforeseen 12th Aug 18, 6:13 PM
    • 3,032 Posts
    • 3,958 Thanks
    unforeseen
    It's not a PUBLIC Right of Way anyway.
    • Zippy Badger
    • By Zippy Badger 12th Aug 18, 6:32 PM
    • 7 Posts
    • 1 Thanks
    Zippy Badger
    As your neighbour is using it then it could be argued it is needed.
    Originally posted by lincroft1710
    Sorry I may have be misleading neighbours have a ROW over our drive and it appears tricky to extinguish that. The Public Highways Act (1980) Section 116/118 however allows public roads to extinguished if they aren't necessary and we think the use of our road is no longer necessary (as they have their own drive and a separate path)
    I know I cannot use the PHA but why is it so different Private - Public as the basic issue is the same?
    • bouicca21
    • By bouicca21 12th Aug 18, 6:34 PM
    • 3,952 Posts
    • 6,254 Thanks
    bouicca21
    They have the right to drive over/down the drive but not to park.
    Originally posted by Zippy Badger

    But does anyone else have the right to use the drive? Can the neighbours authorise others (e.g. delivery persons) to walk or drive over it?


    TBH the more you make life difficult for the neighbours, the more you will convince them that you put a high value on the RoW.
Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

1,253Posts Today

7,635Users online

Martin's Twitter