Prescriptive rights of way and alternative access routes

Prescriptive rights of way and alternative access routes

Postby JimH1234 » Tue Sep 03, 2013 7:03 pm

We have an issue with our shared driveway in front of our house, our neighbour is claiming a prescriptive right of way across our driveway to access his garage. What is interesting and where I would be interested in people's advice is that prior to about 5 years ago the neighbour had free access across his own driveway to his garage but then built a wall which effectively restricted the access to his own garage.

Prior to building the wall he could in theory have accessed his garage by going across our land (there was no obstruction such as a wall) or his land. In reality he rarely used the garages and did not as far as we know cross our land and certainly not while we were in as there will almost certainly have been cars parked on our driveway.

How would a court interpret this point in terms determining the path of any right of way, continuous use and the date at when the clock would have started ticking for the prescriptive right of way? He could in theory have crossed our part of the driveway prior to building the wall but clearly had no need to.

I have read some very useful advice in other posts including a quote from 'pilman' stating in relation to another similar case "they are not exercising a lawfaul right of way if they drive on to that land just for the sake of it", which I infer to mean if they had free access over their own land they cannot then also claim a right of way over our land, i.e. prior to building the wall? That would infer that at best they have only possibly had access for 5 years which is clearly well short of the required 20 for a prescriptive right of way.

Many thanks for any advice.
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Re: Prescriptive rights of way and alternative access routes

Postby Conveyancer » Tue Sep 03, 2013 9:44 pm

The availability of an alternative access at any time does not rule out the possibility of acquiring a right of way by prescription. The sole question is whether the route was used in accordance with the rules for the necessary period.
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Re: Prescriptive rights of way and alternative access routes

Postby arsie » Tue Sep 03, 2013 9:55 pm

I for one find it hard to visualise your situation. Can you put up a diagram? Thanks.
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Re: Prescriptive rights of way and alternative access routes

Postby kipper » Tue Sep 03, 2013 11:39 pm

what is the likelihood of you seeing this man crossing this land if he was using it openly and continuously for at least 20 years? Is it in plain view from your house?
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Re: Prescriptive rights of way and alternative access routes

Postby pilman » Wed Sep 04, 2013 8:25 pm

From the information given in the initial posting I cannot imagine that the neighbour will be able to prove a prescriptive easement, which entails 20 years continuous use without permission, without using force and openly exercised so that the land owner is able to know that such a right is being claimed.

Acquiescence is the primary reason why a prescriptive easement can be obtained.
The burdened land-owner must know about such use of their land and do nothing to stop such use.

Five years of such use cannot form the basis of a claim to a prescriptive easement and you need to send a letter confirming that you absolutely forbid use of your land in order that the neighbour can access his garage by driving across your drive.

After that letter is delivered using recorded delivery, the law will consider any further use as use by force, meaning there can never be a successful claim for a prescriptive easement.

The only point I am not clear on is the first sentence of the posting:
We have an issue with our shared driveway in front of our house

What does the lawful easement over the shared driveway allow?

You need to stop all such access especially if the neighbour has deliberately prevented access over his own land by building a wall.
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Re: Prescriptive rights of way and alternative access routes

Postby ukmicky » Thu Sep 05, 2013 12:01 am

After that letter is delivered using recorded delivery, the law will consider any further use as use by force, meaning there can never be a successful claim for a prescriptive easement
Hi Pilman


I have never seen a case lost due to the landowner sending one simple letter forbidding access and do not feel it would be enough Do you know of any cases.?

Continued objections to the trespasser could probably be classed as with force but even then i have yet to see a precriptive easement case lost due to force because the landowner objected to the trespass

An injunction would be a much safer option.
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Re: Prescriptive rights of way and alternative access routes

Postby Conveyancer » Thu Sep 05, 2013 9:44 am

ukmicky wrote: I have never seen a case lost due to the landowner sending one simple letter forbidding access and do not feel it would be enough Do you know of any cases.?

Continued objections to the trespasser could probably be classed as with force but even then i have yet to see a precriptive easement case lost due to force because the landowner objected to the trespass

An injunction would be a much safer option.


Agreed. An injunction or interrupting the user is what is needed.
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Re: Prescriptive rights of way and alternative access routes

Postby pilman » Thu Sep 05, 2013 11:35 am

Legal Authority appears to support the fact that a strongly worded letter setting out that action will be taken because of a trespass over non-servient land can be sufficient to stop a claim for a prescriptive easement..

Newnham v Willison (1987) 56 P & CR 8
The question which arose was whether the user of a ‘swept curve’ was contentious before June 27, 1983, a year before the action was begun. The Court of Appeal concluded that it was contentious because on 23 June 1983 solicitors for the Plaintiff’s predecessor in title had written to one of the Defendants that they and the Plaintiff were becoming somewhat concerned with various obstructions that were being placed at the relevant bend which restricted access by large vehicles which needed the ‘swept curve’, and asked for their removal. The court concluded that the letter created a contentious situation which meant that user from that time would have been by force and that the claim under the Prescription Act had to have been brought within a year of that letter.

Smith v Brudenell-Bruce, [2002] 2 P & CR 51
“It seems to me a user ceases to be ‘as of right’ if the circumstances are such as to indicate to the dominant owner, or to a reasonable man with the dominant owner’s knowledge of the circumstances, that the servient owner actually objects and continues to object and will back his objection either by physical obstruction or by legal action. A user is contentious when the servient owner is doing everything, consistent with his means and proportionately to the user, to contest and to endeavour to interrupt the user.”

(1) Norman Alan Matthews (2) Elizabeth Anne Matthews v Herefordshire Council ( Easements and profits a prendre) [2011] EWLandRA 2010_0056 (11 August 2011)
A recent case before the Adjudicator to Land Registry summarised what comprised the use of force by referring to those two decisions above and others from the late 1800's
Read from paragraph 18 onwards as the case is listed on BAILII.org

Obviously an injunction is more final, but an initial objection letter cannot do any harm, especially if physical barriers are then erected to prevent unauthorised use.
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Re: Prescriptive rights of way and alternative access routes

Postby Conveyancer » Thu Sep 05, 2013 2:12 pm

Pilman

I am not sure that the cases you cite are necessarily conclusive. The phrase "the case turned its facts" comes to mind. I think at the very least there has to be a clear indication that physical intervention or court action is not an idle threat. I suspect that the court needs to be persuaded that the use has been in the teeth of continuous vigorously expressed opposition. A Joyce Grenfell "Don't do that" is not enough. If you want to play it safe "actions speak louder than words".
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Re: Prescriptive rights of way and alternative access routes

Postby pilman » Thu Sep 05, 2013 3:16 pm

If you want to play it safe "actions speak louder than words.
Agreed entirely.
All I was suggesting was a letter confirming that the land-owner objects strongly to the use of their land for the purposes being currently made by the neighbour and stating that this will mean that all further use meets the definition of use by force, meaning that a prescriptive easement cannot ever be recognised.

That letter could quote the legal authority I mentioned above to give it additional gravitus.

That will cost a few pennies and "could" result in the neighbour stopping future use.

This type of opening letter that reflects certain aspects of the law, although possibly not with absolute clarity, is what I have see a number of times when solicitors act for a client.
It is the first attempt at a resolution in favour of the client being legally represented.

If the neighbour continues, then is the time to seek an injunction with all the legal procedure and costs that entails.
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Re: Prescriptive rights of way and alternative access routes

Postby JimH1234 » Thu Sep 05, 2013 5:54 pm

Many thanks for the comments and advice, all very helpful and reassuring. To clarify a couple of points, when I say shared driveway what I mean is adjoining land outside our properties that both parties could in theory drive over. We use it to access our property and park on and they could in theory use it to get to their garage. Yes the land is in sight so we would be able to see the neighbour using it but my concern is around the burden of proof. I realise the 5 year period is not sufficient but if they argue that since the land has been unfenced and open for 20 year they and their predecessors could occassionally have driven over it irrespective of whether they needed to it may be quite hard to prove they didn't. Is the burden of proof on them to prove they (and their predecessors did) or on us to prove they didn't? I am worried it then some down to our word against theirs at the end of the day. I was hoping therefore that there was some kind of needs test to be able to establish a right of way but it doesn't sound like there is and our best defence is therefore based on the fact that they haven't regularly used this land to access their garage over the whole of the required 20 year period. One other fact that may help based on reading other posts is that they have in the past asked for permission for delivery lorries to park on the land to deliver things to their property to avoid causing an obstruction to other neighbours and that permission has been given although this has always been orally, does that fact help defeat any possible claim?

Many thanks
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Re: Prescriptive rights of way and alternative access routes

Postby syl2 » Fri Sep 06, 2013 6:19 pm

If you gave him permission, he can't gain proscriptive rights. Any permission given can be withdrawn at any time.

To gain rights there has to have been continuous use - you say he hasn't been using it.

Case closed I think.
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Re: Prescriptive rights of way and alternative access routes

Postby kipper » Fri Sep 06, 2013 7:52 pm

So the "shared driveway" is not a driveway but the land in question adjacent to your properties. why did you describe it as shared?
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Re: Prescriptive rights of way and alternative access routes

Postby arsie » Fri Sep 06, 2013 8:30 pm

I always find a diagram helps, as - usually - a picture tells a thousand words and most people can draw better than describe in words. This question seems to have been answered but I could not grasp the situation: must try harder :roll:
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Re: Prescriptive rights of way and alternative access routes

Postby JimH1234 » Fri Sep 06, 2013 8:35 pm

Our land is land we use to access our property (and hence part of our driveway), it is adjacent to land owned by our neighbours to access their property and the combined area was open (prior to the wall), hence the description as a shared driveway. Apologies if this is not how it would normally be described but it was the best way I could think of describing a rather odd set up. For clarity there is no agreed or existing right of way over our land for our neighbour or visa versa. If it comes down to the plain fact of 'continuous use', which I believe doesnt actually need to be that regular, on which party does the burden of proof fall given its all in the past and its difficult by definition to evidence?

On the permission point does it matter what the permission was given for, i.e. our permission was only in relation to delivery lorries not day to day or occassional access by our neighbour in his car?

Appreciate the feedback and advice. Thanks

PS I will try and figure out how to up load a plan!
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