Prescriptive rights of way and alternative access routes

Re: Prescriptive rights of way and alternative access routes

Postby arsie » Fri Sep 06, 2013 9:20 pm

Jim, thanks, but I think I get the picture now! From what I understand, you and neighbour have always kept the area in front of your garages open access, without the inconvenience of a central, dividing fence or wall between the two 'drives' so that it was easier to swing open wide the doors of cars parked in front of the garages.

How long ago did your neighbour inadvertently restrict the opening of 'his' drive'? You said he built a wall and I am imagining that was at the front of his front garden possibly extending his existing front wall? That is the time from when he would have needed a bit of 'your' drive to get access to 'his' drive. Did you say anything to him at the time?
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Re: Prescriptive rights of way and alternative access routes

Postby ukmicky » Fri Sep 06, 2013 10:16 pm

JimH1234 wrote: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


Occasional permision for deliveries is different to him driving his car in when he decides to without your permision . Also whilst verbal permision is in theory enough to prevent a precriptive easement, in practice it is not. It needs to be in writing.
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Re: Prescriptive rights of way and alternative access routes

Postby Conveyancer » Sat Sep 07, 2013 9:50 am

ukmicky wrote:
JimH1234 wrote:Occasional permision for deliveries is different to him driving his car in when he decides to without your permision . Also whilst verbal permision is in theory enough to prevent a precriptive easement, in practice it is not. It needs to be in writing.


Sending a letter after the user has started is probably not enough. What you need is to get a written acknowledgement that the use is with consent and get it regularly - say annually.
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Re: Prescriptive rights of way and alternative access routes

Postby haradan » Sun Jan 01, 2017 1:33 pm

Happy New Year all helpful people,

In the quote below Pilman refers to two cases of acquisition of prescriptive easement ...I see that both failed under the Prescriptions Act 1832 ( one year rule from when it became contentious) but I read elsewhere that while SmithV Brudenell-Bruce failed under the Prescription Act one year rule it nevertheless succeeded under The Doctrine of Lost Modern Grant, as the one year rule doesn't apply under that doctrine. Can anyone explain why that doctrine of LMG wasn't therefore also used in the first case referred to : Newnham v Willison?
In fact, can anyone explain a bit more about doctrine of LMG, I am still confused by it, when might that apply when Prescriptions Act 1832 wouldn't, and vice versa
Many thanks :)

[quote="pilman"]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.”
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Re: Prescriptive rights of way and alternative access routes

Postby ukmicky » Mon Jan 02, 2017 3:02 am

Basic run down

There are 3 forms of prescription

Prescription under common law
The enjoyment must be as if it was of right, so must have been enjoyed without force, without secrecy and without permission. They must show continuous user all the way back to 3rd September 1189 which is the limit of what they call legal memory set by the Statute of Westminster in 1275. Proving use all the way back to 1189 was so hard to prove in most situations they came out with the below forms of prescription.

Prescription Act 1832
Again the enjoyment must be as if it was of right, so you need to be able to show the landowner acquiesced to your use which must have been enjoyed without force, secrecy and permission.

There cant be any breaks in the use for more than a year within the previous 20 years before the claim and that use must continue right up to the day before the legal claim for the prescriptive right. The landowner objecting to the use is enough to show s/he hadn't acquiesced to the use but to show that the user had legal notice of the objection and break in user occurred court action was required.

Lost modern grant

Like above this also requires 20 years continuous user. Unlike with the 2 other forms above that use does not need to be active up until the day before the legal claim . It can be any 20 year period dating back to 1189 the limit of legal memory. If proved the Law presumes a deed of grant was made explaining the use.

New case law
Things have changed recently however and unlike before an objection to the user required court action to show they have notice of an interruption to their use ,now due to decision in Winterburn vs Bennett {2016} all you need to do is put some carefully placed and worded signs up informing everyone that the land is private and that trespassers are not welcome.
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Re: Prescriptive rights of way and alternative access routes

Postby haradan » Mon Jan 02, 2017 1:05 pm

Many thanks for the reply ukmicky, so why do you think in Newnham v Willison the person claiming the prescriptive right didn' t try LMG? Reading the judgement the CA judges all seemed to concur that had he filed his claim even a month earlier he would prob have been successful but because he didn't file claim until after one year from it becoming contentious, then it failed as he only filed under the Prescription Act. Are there perhaps some sort of specific conditions that filing under LMG require which meant he couldn't try that option as well, which is what happened in the Smith case?

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

Postby ukmicky » Mon Jan 02, 2017 3:50 pm

It hard to tell what his thinking was. Some people are so sure they are right that they don't look at the bigger picture or take proper legal advice and because courts can only consider the case brought before them which in the Newham case was brought under the prescription act they were unable to consider LMG.
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Re: Prescriptive rights of way and alternative access routes

Postby jonahinoz » Mon Jan 02, 2017 7:42 pm

Hi,

From my limited knowledge, I believe your neighbour must have driven over your drive, once a year, for 20 consecutive years. OK, he may have timed it so that you were not there to see him. But as he had no reason to drive over your property until he built his wall, he must have been planning this for several years. I believe "sneaky" is excluded from the prescriptive rules.

In your last mail, I think that you were saying that the two drives were adjacent, without a barrier between them. In that case, your neighbour could inadvertently have veered onto your drive (once a year for 20 consecutive years, and only when you did not have a car parked on your drive?) Is that likely? Can you acquire a prescriptive easement to drive off your own property for no other reason to drive back on again? Would the easement benefit your property before you built the wall?

No doubt, during the same 20 consecutive year period, you inadvertently veered onto your neighbours drive, at least once a year ... and he didn't see you, either. But you have acquired a similar prescriptive easement over his drive, which his wall is preventing you enjoying. :twisted: So ask him to remove the wall.

Your neighbour has instigated a dispute, which will affect the sale of your property. It will also affect the sale of his property if he has to sell it with a disputed easement to access his garage. Even if the easement was not disputed, not owning my own access would deter me from buying. But your neighbour can resolve the dispute at a stroke, by demolishing the wall. You can only resolve the dispute by giving in to his demands ... unless you claim an easement over his drive.

I assume that both you and your neighbour have both lived there for 20 consecutive years ... though your 20 years will start when he built the wall.

Erect a gate across the gap in the wall that your neighbour uses to access his garage. Make sure it is closed every time your neighbour leaves it open. If he doesn't get the message, lock the gate ... put the ball in his court ... make him pay for any injuction ... make him annoy the judge.

Question ... if your neighbour does have a prescriptive easement, by injunction, or your acquiescence, can he stop you parking on your drive?

Ask your council for permission to park across your own dropped kerb (Google says that is necessary ... parking over a dropped kerb is illegal, and can even lead to an endorsement). Then park your car in the road when he goes out. He can ask for police assistance to exit his property, but not to return. I think.

John W
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Re: Prescriptive rights of way and alternative access routes

Postby Collaborate » Mon Jan 02, 2017 9:14 pm

jonahinoz wrote:Hi,

From my limited knowledge, I believe your neighbour must have driven over your drive, once a year, for 20 consecutive years. OK, he may have timed it so that you were not there to see him. But as he had no reason to drive over your property until he built his wall, he must have been planning this for several years. I believe "sneaky" is excluded from the prescriptive rules.

In your last mail, I think that you were saying that the two drives were adjacent, without a barrier between them. In that case, your neighbour could inadvertently have veered onto your drive (once a year for 20 consecutive years, and only when you did not have a car parked on your drive?) Is that likely? Can you acquire a prescriptive easement to drive off your own property for no other reason to drive back on again? Would the easement benefit your property before you built the wall?

No doubt, during the same 20 consecutive year period, you inadvertently veered onto your neighbours drive, at least once a year ... and he didn't see you, either. But you have acquired a similar prescriptive easement over his drive, which his wall is preventing you enjoying. :twisted: So ask him to remove the wall.

Your neighbour has instigated a dispute, which will affect the sale of your property. It will also affect the sale of his property if he has to sell it with a disputed easement to access his garage. Even if the easement was not disputed, not owning my own access would deter me from buying. But your neighbour can resolve the dispute at a stroke, by demolishing the wall. You can only resolve the dispute by giving in to his demands ... unless you claim an easement over his drive.

I assume that both you and your neighbour have both lived there for 20 consecutive years ... though your 20 years will start when he built the wall.

Erect a gate across the gap in the wall that your neighbour uses to access his garage. Make sure it is closed every time your neighbour leaves it open. If he doesn't get the message, lock the gate ... put the ball in his court ... make him pay for any injuction ... make him annoy the judge.

Question ... if your neighbour does have a prescriptive easement, by injunction, or your acquiescence, can he stop you parking on your drive?

Ask your council for permission to park across your own dropped kerb (Google says that is necessary ... parking over a dropped kerb is illegal, and can even lead to an endorsement). Then park your car in the road when he goes out. He can ask for police assistance to exit his property, but not to return. I think.

John W


You can't get a prescriptive easement in the way described.
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Re: Prescriptive rights of way and alternative access routes

Postby COGGY » Mon Jan 02, 2017 11:11 pm

Hi
I am not good at imagining scenarios at the best of times and now is not the best as I am getting over flu. However I wonder if the following would help you? Presumably you do not wish to access your neighbour's garage. Therefore would it be possible for you to put some heavy pots along the route which your neighbour wishes to drive across and you do not drive across? Does this make sense? You need to buy some biggish pots, put them in place (when the neighbour is out) put lots of heavy bricks or stones in the base, then put soil and plant them. This is to ensure the neighbour cannot move them. I read this good idea on this site about three years ago and when a friend was having trouble with her neighbour driving over her drive I told her. She used the idea and it sorted the problem for her.

I am sure someone like Collaborate will say if this idea is a bad one but it certainly worked for my friend.

Good luck. Coggy
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