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  • 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 3
    • Zippy Badger
    • By Zippy Badger 12th Aug 18, 6:58 PM
    • 7 Posts
    • 1 Thanks
    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.
    Originally posted by bouicca21
    Only they and 'their successors' have a right to pass over the drive with or without horses, cattle carts, carriages, motor cars, and other vehicles' - the usual archaic blurb...but still valid today....
    We know that the ROW was set up at a time (1953) their driveway did not exist and that ROW was a necessity... I am trying to discover whether when they built the new drive ((2009) whether 'the necessity' was or can be removed???
    If I could write the law it would be and it appears to be so in the
    U.S. (Paine v Chandler 134, N.Y 385 (1892) but I realise that it may not be so here in Blightly as someone earlier said I need a good ROW Solicitor...
    • shortcrust
    • By shortcrust 12th Aug 18, 7:17 PM
    • 2,127 Posts
    • 3,250 Thanks
    shortcrust
    Only they and 'their successors' have a right to pass over the drive with or without horses, cattle carts, carriages, motor cars, and other vehicles' - the usual archaic blurb...but still valid today....
    We know that the ROW was set up at a time (1953) their driveway did not exist and that ROW was a necessity... I am trying to discover whether when they built the new drive ((2009) whether 'the necessity' was or can be removed???
    If I could write the law it would be and it appears to be so in the
    U.S. (Paine v Chandler 134, N.Y 385 (1892) but I realise that it may not be so here in Blightly as someone earlier said I need a good ROW Solicitor...
    Originally posted by Zippy Badger
    I think you need an act of parliament rather than a good solicitor.
    • bouicca21
    • By bouicca21 12th Aug 18, 7:25 PM
    • 3,949 Posts
    • 6,244 Thanks
    bouicca21
    So if you are really bl00dy minded you can prevent them from having deliveries?


    (I asked because I have a RoW over the communal drive that serves my block of flats, but so do my friends and family and anyone else I care to nominate.)
    • Davesnave
    • By Davesnave 12th Aug 18, 7:58 PM
    • 26,382 Posts
    • 95,439 Thanks
    Davesnave
    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
    Yes, you asked a specific question about the PHA 1980, yet didn't give anyone a reference to the section referred to.

    That wasn't hilarious, but the implication that people would just have to plough through an Act of Parliament to assist you, certainly was.
    Last edited by Davesnave; 12-08-2018 at 8:01 PM.
    A garden is never so good as it will be next year....
    • Davesnave
    • By Davesnave 12th Aug 18, 8:20 PM
    • 26,382 Posts
    • 95,439 Thanks
    Davesnave
    I know I cannot use the PHA but why is it so different Private - Public as the basic issue is the same?
    Originally posted by Zippy Badger
    It's different because when something on the public highway is altered, it's done with consultation, everyone witnesses it and actions cannot be hidden.

    In the case of private land, there is no public scrutiny, so it might be relatively easy for a landowner like yourself to diminish or extinguish others' rights without their agreement.

    So, it's not for you to decide unilaterally that this entrance isn't needed, even if it falls out of use for some decades. As Pastures New has already pointed-out, properties change over time and the neighbour's cottage could be sub-divided, with the part nearest you using a different entrance from the rest.


    Thre is one way to extinguish this RoW. If you buy the neighbour's cottage, it lapses, because no one can have a RoW over their own land.
    A garden is never so good as it will be next year....
    • unforeseen
    • By unforeseen 12th Aug 18, 9:01 PM
    • 3,024 Posts
    • 3,956 Thanks
    unforeseen
    Only they and 'their successors' have a right to pass over the drive with or without horses, cattle carts, carriages, motor cars, and other vehicles' - the usual archaic blurb...but still valid today....
    We know that the ROW was set up at a time (1953) their driveway did not exist and that ROW was a necessity... I am trying to discover whether when they built the new drive ((2009) whether 'the necessity' was or can be removed???
    If I could write the law it would be and it appears to be so in the
    U.S. (Paine v Chandler 134, N.Y 385 (1892) but I realise that it may not be so here in Blightly as someone earlier said I need a good ROW Solicitor...
    Originally posted by Zippy Badger
    If the driveway is on the same route as their ROW then it will continue to exist over the new driveway.
    • xylophone
    • By xylophone 12th Aug 18, 10:23 PM
    • 26,810 Posts
    • 15,975 Thanks
    xylophone
    It seems that you knew about the neighbours' using the right of way (by choice, not necessity) before you bought the house.

    Why did you buy the property if you knew that their little game would annoy you?
    • Cakeguts
    • By Cakeguts 13th Aug 18, 12:05 AM
    • 5,033 Posts
    • 7,561 Thanks
    Cakeguts
    Only they and 'their successors' have a right to pass over the drive with or without horses, cattle carts, carriages, motor cars, and other vehicles' - the usual archaic blurb...but still valid today....
    We know that the ROW was set up at a time (1953) their driveway did not exist and that ROW was a necessity... I am trying to discover whether when they built the new drive ((2009) whether 'the necessity' was or can be removed???
    If I could write the law it would be and it appears to be so in the
    U.S. (Paine v Chandler 134, N.Y 385 (1892) but I realise that it may not be so here in Blightly as someone earlier said I need a good ROW Solicitor...
    Originally posted by Zippy Badger

    It this ROW is going to continue to annoy you it would probably be more sensible to sell your house and move to one which doesn't have a shared access as you are not going to be able to do anything about this ROW.
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