Access to my property

Access to my property

Postby devontallguy » Tue Oct 31, 2017 9:16 pm

In 1950 the field behind 5 houses was sub divided and a grid of rights of ways was put across the field. When we purchased our house we have an L shaped right of way. Where the L has the dog leg the right of way runs along the boundary to our garden, and it is at this dog leg where the gate into our garden is. Therefore part of the right of way runs along the boundary between our garden and the neighbours garden

When our house was vacant for 2 years before we purchased it our neighbours on whose land the right of way is, built a raised vegetable garden with brick walls over a part of the right of way, admitting to us when we moved in this, and saying that they hoped we didnt mind. In truth we didnt as it was at the end of the right of way and didn't block our route to the garden. However, over the last 7 years they have allowed vegetation to grow over a part of our right of way even though we have reminded them it is a right of way. At the same time they have erected a 2m tall fence along the inner boundary of part of the right of way to provide 'seclusion for them when in their garden'. They have put this fence at a width they feel is adequate for our right of way, and never asked us our opinion before erecting. In truth we have a fairly clear right of way between our house and garden, but it is clear that the neighbours by default are trying to enclose the part of our right of way that runs between our garden and theirs into their garden.

18 months ago, we asked them to clear the right of way of all bushes as we wanted access to replace our garden fences --- the bushes are now pushing against our fence causing damage and making it hard to replace. Our request was met by the neighbours with a burst of anger and then silence, with no further discussion or action on the removal of the hedgerow. Then out of the blue about 6 months ago we got a letter from a solicitor informing us that our neighbours believed there was no reason for us to have the right of way beyond the dog leg as 'it provided us access to nowhere'. They wanted us to agree to this and allow it to be incorporated into their garden. We refused and requested the solicitor to inform them to clear the right of way up to the point of their raised vegetable bed as we didn't think it reasonable to ask them to remove that. We offered for them to keep the raised bed and clear the right of way up to it and we have now received a very aggressive and bullying letter from their solicitor.

They have now threatened court action and stated the only 2 options are
1) for us to accept we no longer need this part of right of way,
or
2) alternatively they will provide full access to the right of way by clearing the vegetation and demolishing the raised vegetable bed but as it is a right of way between 2 points we must remove our present gate into our garden and move it to the end of the right of way. They argue the access is between the start and end of the right of way and we have no right to leave it any point along its course

I have looked at the covenant that gives us the Right of Way it only states to provide access from point A (at the far end of the right of way) and Point B (our house). If we use X as the mid point of the right of way this is where the right of way turns 90 degrees and runs along our garden, and it is at point X where our gate is. The covenant does not mention where we can leave the right of way onto our property.

The question I need answering is whether we can argue that as the Covenant does not state where, or how many points of access we can have into our garden then they cant restrict us to putting a gate at the furthermost extremity. we dont mind putting a gate there as long as we can keep our gate as it will allow us access to bring long things into garden, like fence panels, without having to do a dog leg.

This has all got out of hand as all we wanted was for our right of way to be cleared so that we could replace our garden fence and not have these plants which shouldnt be there, growing over our garden and through our fence.

This has now led to a further sub question. As I said they have now put up a 2 m high fence along part of the right of way. This makes the path 36 inches wide. However, through further research I believe it should be 44 inches - I know it is an odd measurement, but in the neighbouring garden there is an historic tarmaced path which joins our right of way and that is 44 inches, the gate onto the right of way from our house is 44 inches wide and the width of a small group of steps at start of the right of way on our neighbours land is 44 inches wide, and their shed is 44 inches from the neighbouring fence. As there is no measurement in the covenant and they wont shift on their position, can i request the fence be removed as it is on our right of way and be replaced at a distance of 44 inches.
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Re: Access to my property

Postby stufe35 » Tue Oct 31, 2017 10:39 pm

If you don't need that section of the right of way, offer to allow it to be extinguished for a fee.?

I believe the case Emmett v sisson is relevant to your situation. Google it and have a read.
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Re: Access to my property

Postby MacadamB53 » Tue Oct 31, 2017 11:40 pm

Hi devontallguy,

We refused and requested the solicitor to inform them to clear the right of way

that was a mistake - if you want to use the RoW it’s up to you to clear it of vegetation or debris deposited by the wind - so one can appreciate why the neighbour might not be best pleased with getting such a demand.

kind regards, Mac
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Re: Access to my property

Postby mr sheen » Wed Nov 01, 2017 8:32 am

They have a point about the ROW going nowhere and their argument about leaving it part way along has some foundation but can be overcome by you.

Why not accept option 2 from the solicitor? They clear the ROW and you move the gate to the end so you have to use the ROW all the way along so it is then necessary all along and it protects it permanently since you have this in writing from a solicitor.
Alternatively put a gate right at the end so that you have to use the whole length some of the time and argue the mid-way gate.
It will be difficult to prove 44as oppose to 36 inches without specifications in the deeds. As long as you can pass and repass probably with a wheelbarrow then that will be as much as you can expect.

You had the right to remove encroaching vegetation and should have done so at the time.

Let us know what you want and contributors will assist in a response to help resolve the matter since you have options from a solicitor that could get the matter resolved.
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Re: Access to my property

Postby devontallguy » Wed Nov 01, 2017 8:16 pm

We did think about asking them for some money for us to relinquish our rights to part of the path, but in the end decided it would be better to keep it as it at least in principal creates a boundary between our garden and theirs.

We have told them that we would clear the rights of way, but when i have cut some overgrowing plants on another part of the path they complained saying that the right of way was in fact their property. That is why I asked them to clear the bit we needed cleared rather than do it myself, but it in fact stemmed from the neighbour offering to come into our garden to cut back the overrhanging parts of these plants in our garden. All I said was that it would better for him to do it from his side and I asked him to remove the whole plants as they had been allowed to grow on our right of way and we needed access to remove our fence panels. I believe they have deliberately allowed them to grow to bring on this situation. The neighbours have been very obstructive over several other things in the past and we have tried to be accommodate them so as to have a quieter life - they have just pushed the situations. This right of issue is just another example of them trying to get everything they want through bullying. It is clear they want our garden area -- they offered the former owner a price to buy it when she put up the house for sale and she refused, and just after we moved in they offered to buy it from us.

I will accept the offer of putting a gate at the end of the right of way in my letter. However, part of me thinks that this has been offered for us to accept and then be cause for us being unreasonable. It will require a lot of work by our neighbour to clear the vegetation and the raised vegetable bed, the latter we have not asked for, or expected. The neighbour is offering an unreasonable solution so i am not sure why, and am wary. They are offering a solution that they believe will be unreasonable to us so as by default they will get the right of way incorporated into their garden

The issue about the width is a difficult one, but i think that there is enough evidence to suggest 44 inches. This might seem I am being bloody minded but there is a practical issue. BT have placed a telephone cable pole on the right of way. At present this is just a bit up the path from where their fence stops. However their intention has always been to fence the length -- they have in fact put the structural supports all the way to our gate but we stopped them as it would have blocked our right of way now in dispute. If they do complete part of this fence the width between their fence and the telephone pole would be about 28 inches and this would be a major hindrance when moving waste from our garden.
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Re: Access to my property

Postby ukmicky » Thu Nov 02, 2017 12:50 am

Provided you would be stepping off the ROW directly onto your land you can place as many gates as YOu wish into your fence and can access the ROW at any point along it .Their solicitor is bluffing and as stufe35 says the case law in Emmett v sisson is relevant here.

If it were me I would download a copy of the judgement and send it to their solicitor telling him to stop trying bully you and include directions to the nearest cliff they can jump off.
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Access to my property

Postby stufe35 » Thu Nov 02, 2017 9:38 am

Heed ukmickys words he is a long time contributor to this forum and a wise cookie..you should simply ignore their solicitors options.

My thoughts ....It seems to me you have a currently unused and arguably useless strip of land between you and your neighbour. They cant use it because you have a right of way over it. You cant use it as your garden because it belongs to them. You don't use it for access as you have a perfectly adequate access already.

You say you want to keep it as it provides a useful barrier between you and your neighbours gardens. Let me tell you millions of gardens across the country manage quite adequately with a fence between them. This is all you need.

This strip of land is currently causing you and them great stress, and is starting to cost money in solicitors fees. Life is too short and solicitiors love taking your money for this kind of stuff....they can make it stretch out for months and take thousands in fees. You are already starting to talk about aguing the toss over a few inches.....this will cost you thousands and achieve nothing.

My advice ..(which assumes you will at no point in the future have a need to use this section of the right of way) .Offer to extinguish this section of your right of way so that they can incorporate it into their garden. They must pay all your solicitors fees and and lender fees for amendments to your deeds and a one off extinguishment fee....you need to decide on this figure....lets say £2500 as a starter for ten (it will depend on the situation which only you know..is this a leafy suburb of a rich town or a council estate ? ...is he a doctor or unemployed ?). You and your family can then treat yourself to a nice holiday , or some new garden furniture ..or whatever floats your boat. Alternatively you can spend the next five years or more lining the pockets of solicitors, stressing every day and night about it and living in a terrible atmosphere at loggerheads with your next door neighbour.

I can tell you from bitter experience the second option is just not worth it. Life is too short. Cut a deal and get on with the rest of your life.

Read this : http://www.childandchild.co.uk/cms/docu ... sputes.pdf

Another option is of course to offer to buy the strip of land off them and incoraparate into your garden..the cash then going in the other direction.
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Re: Access to my property

Postby devontallguy » Sun Nov 05, 2017 3:23 pm

Thank you for all the replies. I can understand the idea of it being a relief to not be in dispute. However, this is not the first dispute we have had with the neighbours (or other neighbours have had with them). This is one of two rights of ways across their land which we have. They have opposed both and on many occassions tried to limit our use to both by physical means or by making it seem we were being unreasonable (one such case was to insist we call to them whenever we wanted to go to our garden so they could take their dog inside). This dispute was the final straw as it is clear they were expecting us to give in without a fight by firstly ignoring the situation and our requests, and then by taking legal action to remove the right of way from us. I fully understand the best option is to agree with them, but we are fully aware that once this fight is over and if they win, then they will go after the other right of way which we use regularly but is a great inconvenience to them. This second right of way was mentioned in a second letter from their solicitor, only in passing, but the implication was that we were also wrong about that right of way.
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Re: Access to my property

Postby ukmicky » Sun Nov 05, 2017 6:34 pm

Let me comment on one thing in the above post.

They can not legally take the ROW away from you. Even if no one was to step on it for a hundred years they still would not legally be able to remove it. They are either bluffing in order to try and scare you into giving way in some respect or they have no idea how the law works . As they have a solicitor I would say they are bluffing ,and yes solicitor do employ buffing tactics .


You do not have to do anything.


If I were you I would write a stern letter to their solicitor and tell them you have taken legal advice and if they continue in their underhanded tactics to try and give up your easement you will report them to their regulating authority.
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Access to my property

Postby stufe35 » Sun Nov 05, 2017 9:07 pm

Please understand , there is no legal action they can take to remove a right of way from you. A right of way can only be extinguished with the dominant owners (you) agreement; usually for a fee. The terms dominant and servient are no accident.

No one has advised you to agree with them. Their solictors letter offers 2 options none of which a you have to take because they are total rubbish as advised by ukmicky.

If you decide to sell of this right of way that you have that you do not use for a fee, this is not them winning and it is not you giving in.

They cannot 'go after ' your 2nd right of way. The only way it can be extinguished is with your agreement. \If you need it (and most rights of way have been created because they are needed) then just keep it.

I feel and understand your pain...but please try to disengage from them or you will potential adversely effect your life for a long period of time. (believe me I know)

I am recognising traits you describe in your neighbour .....another bit of reading for you here...its long but please read it all , it may not seem relevant at first but please persevre..perhaps its your neighbour and it will help you deal with them.

https://www.nfh.org.uk/beyond-mediation/
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Re: Access to my property

Postby MacadamB53 » Sun Nov 05, 2017 9:15 pm

Hi devontallguy,

it would be really useful to see a plan of the layout - labelled to show who owns what and the routes of the RoWs.

kind regards, Mac
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Re: Access to my property

Postby stufe35 » Fri Nov 10, 2017 3:24 pm

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Re: Access to my property

Postby Scrambler » Sat Nov 11, 2017 6:45 pm

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Re: Access to my property

Postby jonahinoz » Thu Nov 16, 2017 10:38 am

They must pay all your solicitors fees and and lender fees for amendments to your deeds and a one off extinguishment fee....you need to decide on this figure....lets say £2500 as a starter for ten.

Hi Stufe,

Is that £2,500 in addition to the professionally erected, two metre high fence, that will be erected along the boundary? :roll:

John W
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Re: Access to my property

Postby stufe35 » Thu Nov 16, 2017 5:29 pm

Being honest I wish id never mentioned a figure. Its impossible to value it without knowing lots of things, like the length involved and as you point out the costs of any modifications to fences or new fences or whatever can all be brought into it. Even then something like this would be very difficult to value it depends on the 2 people involved and what they perceive they will gain from the situation and how much money they have to chuck at it and how desperate they are for money.etc etc.
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