Hedge and property easement

Hedge and property easement

Postby Dodderz » Thu Aug 01, 2013 8:11 am

My neighbour to the North whose property is I understand would be servient to ours has an access easement down our driveway. He has lived there for 31 years and has regularly cut/tended the hedge lining one side of the drive and was almost certainly doing this before we arrived. I am concerned that he will have obtained an easement over the hedge and that he can now tend the hedge as he wishes and that I cannot stop him doing this, even if I were to seek such an intervention through the court. Whilst he has of course a right to clear any growth that might obstruct his access this would never occur since we use the drive virtually every day and therefore if his access were obstructed then so would ours. Besides that he has, to my knowledge, never driven down the drive, he really has no need to do this, and only ever uses it to access his front door and greenhouse on foot. So, can someone acquire easement/proprietary rights over a hedge that does not belong to them by virtue of uninterrupted tending of that hedge for 20+ years? Both myself and another neighbour with whom we share ownership of said hedge have from time to time asked our mutual neighbour not to cut the hedge but perhaps in a rather too polite manner and only recently in writing. Should push come to shove over this would it be the hedge cutter's word against ours? How would he be able to prove that he has tended this hedge for over 30 years, if that is the case, which it might not be? He lives alone and I've never seen anyone but the milkman and postman visit.
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Re: Hedge and property easement

Postby arsie » Thu Aug 01, 2013 9:01 am

Cutting someone else's hedge is never more than that, however long it goes on. Keeping the access way clear does not alter the ownership of the hedge nor of the land on which it stands. (I think I can picture your situation but a diagram would always help :) )

Note: In right of way terms, I think dominant land is the one that has rights over the servient land - servient as in 'to serve'. You own the land which provides the service - I believe the right to pass and repass - hence yours is the servient land.
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Re: Hedge and property easement

Postby despair » Thu Aug 01, 2013 9:18 am

I somehow think this neighbour is a gem to be treasured and a product of a bygone age when neighbours simply helped others
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Re: Hedge and property easement

Postby Conveyancer » Thu Aug 01, 2013 10:07 am

I do not think that an easement can have arisen here. Whilst the list of easements is not closed any new easement must be in the general nature of an easement. Apart from anything else, it is difficult to see how cutting the hedge actually benefits the neighbour's property. If it is capable of being an easement it is too late to do anything about it now as he has been doing it for over 20 years.

If the growth extends over the route of his right of way he is in any event entitled to cut it back. The fact that he does not make use of the right of way is irrelevant.

Is there a particular reason why you want to stop him trimming the hedge?
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Re: Hedge and property easement

Postby Dodderz » Thu Aug 01, 2013 11:00 am

Thanks for the answers. I do think that my neighbour would find it difficult to claim an easement that gave him unfettered rights to tend, trim etc the hedge No right may be asserted as an easement if it is "too vague and too indefinite"
This has been going on for sometime and now my other neighbours have been upset by this his hedge cutting, and he painted their garage doors. So we feel it's time to act. He cuts the hedge rather too vigorously for both mine and my other (joint hedge owner) neighbour's liking, he leaves a mess and never forewarns us which can be inconvenient when we need to use the drive. He has also been saying that the drive belongs to him, my deeds are fraudulent as well as other more serious insinuations as to criminal activity by me against his property all of which are complete rubbish. To give you a flavour of his mind set he has written to me saying that I put a new window in my house so as to spy on him! We have an expert boundary surveyor coming to draw up a survey which we intend to copy to this nuisance neighbour along with a letter insisting that he no longer cut the hedge otherwise we will take legal action. I understand that so far s access is concerned he can only cut back to the extent reasonably required to use the right of way.
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Re: Hedge and property easement

Postby Dodderz » Thu Aug 01, 2013 11:19 am

Here's a diagram that may help.
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Re: Hedge and property easement

Postby arsie » Thu Aug 01, 2013 11:53 am

Thank you that makes it clear - and not at all what I envisaged without a diagram! Now you have amplified the situation I can see your concern however I think to threaten legal action in the first letter is a bit soon. I would say that, painting someone else's property or coming on to their property and cutting their trees or hedge when they are not preventing him from exercising his right of way, is, legally speaking, damage. You wish him to desist forthwith.

If he ignores this shot across his bows then I would speak to him explaining what your follow up action is going to be if he does it again. Then if he does, a second letter with your threat of legal action but make sure you know what you are going to do and that it is worth it before issuing the threat. Otherwise if you then discover it is not worth the cost or risk of legal action available and don't act, you have lost game set and match.
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Re: Hedge and property easement

Postby Dodderz » Thu Aug 01, 2013 12:11 pm

Thanks for that. What you say makes good sense- keep our 'powder dry' on the legal threat option. After a previous run in when I told him that he must ask my permission to cut the hedge he had his solicitor write me that ' he has every right to tend the hedge having done so for 25 years' and also that it 'infringes his right to light' and he is therefore entitled to trim back the hedge. It was that comment about the 25 years worth of tending and that he has every right to do so that got me worried but I think that it was a typical all guns blazing solicitors letter to scare me and having unpicked it somewhat I think that as you've said just trimming a hedge for 20+ years would not result in any proprietary right. I have since discovered that our neighbour would almost certainly need to obtain a right to light surveyor to establish whether the extra hedge growth would be actionable as it is not at all obvious that his light would be obstructed to that extent and so again I think his solicitor was 'trying it on' so to speak.
Thanks again.
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Re: Hedge and property easement

Postby arsie » Thu Aug 01, 2013 1:13 pm

There is http://www.gardenlaw.co.uk/phpBB2/viewtopic.php?t=1005 an explanation of Right to Light here which says
Right to Light

If you find your garden plunged into darkness by the neighbour's new wall, or your garden becomes shaded by the trees next door, there may be little you can do as not everyone has a right to light. If you have enjoyed a particular level of light for 20 uninterrupted years or more, you are entitled to keep a reasonable level of light for normal purposes, but you can't insist on getting the same amount of light as you have had in the past. The legal test is not 'how much light have I lost' but 'how much light do I still have'. You can acquire a right to light to a particular window in your house, or a structure in your garden, like a greenhouse, but never to the garden itself, so if your garden has been cast into shade you can't complain. You can complain only if an artificial structure, like another house or a wall, interferes with it, no complaint can be made when it is a natural obstacle like a tree that is in the way. If you have any questions or problems relating to loss of light contact your Local Council.


So your hedge being a natural obstacle and pre existing and it looks like being 3 or 4 metres at least from his door can't be a cause of Loss of Light. From what you say I imagine it is a deciduous hedge and if so he can't use the High Hedges legislation. If he can't gain prescriptive rights where there is no benefit (for simply clipping your hedge) and by no stretch of the imagination can this be argued to keep his right of way free of obstructions, he has no possible claim that I can see. You on the other hand could claim he is damaging your property, although you need to take legal advice on this I think as I said before proceeding.

I assume you non replied to the 'all guns blazing' shotgun blast from his solicitor and I would simply ignore it having taken legal advice and would write your own very specific and to the point letter for him to 'cease and desist'.
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Re: Hedge and property easement

Postby Dodderz » Thu Aug 01, 2013 5:07 pm

With respect to 'Despair' the neighbour in question is definitely not a gem in my experience- I only explained one small part of the whole story so as not to go on too much and add irrelevant information to my question of whether he can obtain rights over the hedge by tending it for 20+ years.
You raise an interesting question: at what point does being a 'gem' become intrusive or upsetting? when he starts wandering into your garden to do a spot of weeding without asking or telling you, perhaps that's gem-like, or fetching your lawnmower out of your shed and mowing your lawn whilst your away, again without any prior communication? Personally I would expect someone to at least ask if it's ok to do something to my property. I fail to see why I shouldn't ask my neighbour not to interfere in this way and respect my privacy and my property and that includes leaving my hedge alone if that's what I want. Can he move next door to you please Despair?
I know he's not here to defend himself and there are 2 sides to every story but that's my side and I'm sticking to it.
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Re: Hedge and property easement

Postby despair » Thu Aug 01, 2013 6:44 pm

following your explanation I had actually rescinded my hope he was simply being helpful
Like you I would be furious and put him firmly in his place
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Re: Hedge and property easement

Postby Dodderz » Thu Aug 01, 2013 7:55 pm

Thank you again to the replies.
To Arsie: what you say makes a good deal of sense and I have good reason to believe that having looked into this further you are correct . My understanding is that unless the loss of light is very obvious (e.g. new 10 ft wall right in front of kitchen window) then my neighbour would need to engage a right to light surveyor to establish that the obstruction is actionable.
Damage to property/criminal damage is where we could go but I believe that if this neighbour does not accede to mine and my other neighbour's wishes then we shall need to take legal advice with a view to seeking an injunction. I'm amazed at how seemingly petty this can seem, but, call me old fashioned, I also feel that people can't simply do as they please and do things to other people's property without any consultation, notification or taking the basic courtesy to communicate their intention.

To Nothingtodowithme: yes there is history; in my humble opinion he is a difficult individual and is somewhere 'on the spectrum' . No, what I am suggesting is that it his solicitor who is claiming or implying that by virtue of having cut this hedge for 20+ years my neighbour now has a right to do this with or without my consent. The thing is that this could presumably mean that now my neighbour could object to me cutting my own hedge. Who now owns this hedge if this is correct or who has more rights? If I opted to remove the hedge entirely and replace with a fence or wall where would my neighbours rights be on that if he now has the right to cut it?
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Re: Hedge and property easement

Postby ukmicky » Thu Aug 01, 2013 9:17 pm

If the hedge is yours he cant gain an easement to trim it. If it was his it would be different matter.


If he has an access easement he will have a right to maintain and cut back any growth that prevents his access over the ROW . You cant claim an easement for something that you had a are legal right to do and feel his maintance right would should prevent one from being claimed.


If its yours you can remove the hedge no matter how long he has been trimming it.
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Re: Hedge and property easement

Postby arsie » Fri Aug 02, 2013 12:17 am

nothingtodowithme wrote:I assumed your neighbour owns the hedge; correct if I'm wrong.


Corrected.

Read the back thread and look at the diagram.

The OP owns the hedge and land, naughty neighbour has a ROW and has trimmed the OP's hedge for 20+years gaining nix naught nothing in prescriptive rights but 'thinks' he owns the place. Needs treatment IYAM. :roll:
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Re: Hedge and property easement

Postby arsie » Fri Aug 02, 2013 12:31 am

nothingtodowithme wrote:Thank you arsie in that case dodderz would be perfectly entitled to replace the hedge with a fence or wall.

Just so but I think all dodderz wants is peace and that the neighbour will stay the f*ck away from his hedge :lol:
edit: And I suspect rather likes the hedge and wants to keep it not make changes ...
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