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barrah
Joined: 08 Feb 2010
Posts: 1
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 Posted: Mon Feb 08, 2010 10:22 am Post subject: neighbours(R.O.W) |
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| Our neighbous have a right of way through our garden i dont have a problem with it but as it takes him past our bathroom window I have asked him to let us know when he is coming through but he became abusive.Although i know he can come through are there any privacy issues as it is very unomfertable for my wife and daughter. |
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Conveyancer
Joined: 07 Sep 2005
Posts: 4497
Location: Andalucía
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| Posted: Mon Feb 08, 2010 10:58 am Post subject: |
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If your neighbour has a right of way he is entitled to use it and is not required to give you notice.
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worldsheet
Joined: 08 Jan 2010
Posts: 103
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| Posted: Mon Feb 08, 2010 12:42 pm Post subject: |
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| Quote: | | If your neighbour has a right of way he is entitled to use it and is not required to give you notice. |
There you go. Can't put it better than that.
Frosted/patterned glass and a blind? Or you could write to him and ask whether he would be prepared to alter the route, using a Deed of Variation, so that you could have more privacy? He does not have to agree, but if refusal was unreasonable where you are providing a suitable and equivalent alternative, you may be able to argue that point. But it's not an area you want to delve into, really.
The only grounds you could have for complaint, and it would be not so easy to prove, would be passing without good cause or reason - something that amounted to stalking.
It's a sad and all-too-typical tale you tell of people responding through abuse. It genuinely appears as though people cannot respond in civil terms these days. If his abuse makes you fearful for your safety, then it could amount to common assault (this only requires the immediate fear of attack, not actual physical contact, which would be battery). That would be a matter for the police as a criminal issue. |
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Conveyancer
Joined: 07 Sep 2005
Posts: 4497
Location: Andalucía
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| Posted: Mon Feb 08, 2010 1:03 pm Post subject: |
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| worldsheet wrote: | | ...but if refusal was unreasonable where you are providing a suitable and equivalent alternative, you may be able to argue that point. |
I fear not. You can no more make a neighbour agree to the alteration of a right of way than you can compulsorily purchase part of his land.
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worldsheet
Joined: 08 Jan 2010
Posts: 103
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| Posted: Mon Feb 08, 2010 1:21 pm Post subject: |
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Conveyancer, I'm sure you are right.
However, merely as a point of legal interest and discussion, if there was, let's say a straight line across someone's land that has a RoW over it, and then the landowner wishes to move it my a few feet to allow an extension to his house, let's say, such that it remains a straight line and has exactly the same provisions, dimensions and is in all ways identical to the existing route and has no extra bends or anything like that, then would it not be unreasonable, amounting to a prevention of development of the land to not agree to such an alteration?
Surely, someone somewhere must have tried this argument in a court? |
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Conveyancer
Joined: 07 Sep 2005
Posts: 4497
Location: Andalucía
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| Posted: Mon Feb 08, 2010 2:30 pm Post subject: |
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As a matter of principle, no. You can no more encroach on a right of way than you can on your neighbour's land. The fact that altering the route may be no skin off your neighbour's nose is irrelevant.
However, two things should be noted.
The first is: de minimis non curat lex - the law does not concern itself with trifles. A small encroachment that does not affect the use of the route can be ignored.
The second is that if you incur expense and carry out works obstructing the route and the neighbour sits back and does not object, he will have difficulty in persuading the court to require you to reverse the works - the court will instead award compensation. Of course if there is still a way through the route will be diverted.
Obstructing a route is always risky and best never done. In particular, you should not try and steal a march by carrying out the works while your neighbour is away, nor carry out the works in the teeth of objection. The courts have made it clear that you cannot effectively compulsorily acquire the release of a right by carrying out works and then sit back and wait for the court to award compensation.
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victor508
Joined: 11 Apr 2007
Posts: 887
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| Posted: Mon Feb 08, 2010 5:42 pm Post subject: |
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[quote]
However, merely as a point of legal interest and discussion, if there was, let's say a straight line across someone's land that has a RoW over it, and then the landowner wishes to move it my a few feet to allow an extension to his house, let's say, such that it remains a straight line and has exactly the same provisions, dimensions and is in all ways identical to the existing route and has no extra bends or anything like that, then would it not be unreasonable, amounting to a prevention of development of the land to not agree to such an alteration?
Then there could be a complaint he was walking past their new extension window.
Victor. |
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ukmicky
Joined: 27 Sep 2008
Posts: 1701
Location: London
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| Posted: Mon Feb 08, 2010 7:36 pm Post subject: |
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| Quote: | | Surely, someone somewhere must have tried this argument in a court? |
Their was a case but i cant remember its name where someone built a structure which required a diversion onto land which didn't form part of the ROW
The judge ordered the original path to be reinstated as the new diversion required those with rights over the ROW to walk across land that did not form part of the ROW they were entitled to cross. |
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worldsheet
Joined: 08 Jan 2010
Posts: 103
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| Posted: Tue Feb 09, 2010 4:57 am Post subject: |
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| Quote: | | Obstructing a route is always risky and best never done |
To be fair, I think this has gone off-message. I'm not in a position of considering this situation in reality.
My point was not about obstructions or works. It was about whether an essentially (or actually) identical route in terms of its physical form and overall provision across land could reasonably be objected to by the dominant tenement. That's why I used the simplest form - a straight line.
Ultimately, what would have been the complaint? That a route had been changed without permission (dominant's view), or that the dominant was unreasonably refusing permission and preventing the development of the land (servient's view). Those claims don't have to be legally correct; they are personal contentions, although it would be sensible to frame them in legally correct terms.
My own view is that, in that situation where there was no material difference in the allowance of passage (because, in the end, that is what a RoW is for) where such a change was effected or proposed, a judge would say 'OK, the route should not /should not have been changed without agreement, but the fact is, the right to pass remains, there is no discernible change in the right to pass, and on those grounds, there can be no reasonable grounds to have refused agreement.
To reinforce the point, I'm not arguing to convince myself, but extrapolating from cases I've read and attended. |
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ukmicky
Joined: 27 Sep 2008
Posts: 1701
Location: London
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| Posted: Tue Feb 09, 2010 2:41 pm Post subject: |
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| Quote: | | but the fact is, the right to pass remains, there is no discernible change in the right to pass, and on those grounds, there can be no reasonable grounds to have refused agreement. |
I could be wrong but the way i see it is this .
The problems is on the dominant tenants deeds there may be an actual route marked. To change that route and change their rights and therefore make a change to the deeds would require permission from the dominate tenant who owns the land that the right is attached to.
You may feel their would be no reasonable grounds to refuse but they have an actual proprietary interest over the servients tenants property and have the legal right to walk from A to B over a predetermined area of the property.
A court cant order that change for no reason other than the servient tenants wish to divert it. There would need to be something else like acquiescence or estoppel for that to happen. |
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worldsheet
Joined: 08 Jan 2010
Posts: 103
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| Posted: Wed Feb 10, 2010 8:11 am Post subject: |
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A court cant order that change for no reason other than the servient tenants wish to divert it. There would need to be something else like acquiescence or estoppel for that to happen. |
An interesting reply. I can't say I'm very clear on the conditions that would have to be met. Are you sure about proprietary interest? That would seem to dismiss a claim of easement, as it would be more like ownership. |
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ukmicky
Joined: 27 Sep 2008
Posts: 1701
Location: London
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| Posted: Wed Feb 10, 2010 11:38 am Post subject: |
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| Quote: | | Are you sure about proprietary interest? That would seem to dismiss a claim of easement, as it would be more like ownership. |
Easements are proprietary interests of land ? |
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Conveyancer
Joined: 07 Sep 2005
Posts: 4497
Location: Andalucía
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| Posted: Wed Feb 10, 2010 4:39 pm Post subject: |
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Easements are "incorporeal heraditaments" as opposed to "corporeal heraditaments" A corporeal heraditament is land, buildings and fixtures and fittings. Incorporeal heraditaments are many and various and include easements, profits à prendre (things like fishing rights) and rentcharges. "Real property" includes both corporeal and incorporeal heraditaments.
An easement goes with land as much as the buildings on it. The question of whether or not the dominant owner can be said to be unreasonably withholding consent to varying an easement does not arise any more than does the question of whether or not someone is unreasonably refusing to sell land. Just as you cannot make your neighbour sell part of his land to you because it would be frightfully convenient if he did, so you cannot make him vary or release an easement.
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