Does use of land for over a certain period of time stand?

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Piglet1234
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Does use of land for over a certain period of time stand?

Post by Piglet1234 »

Hi All, I hope you are well and can help with a query presented to my elderly parents.

They are trying to sell their house that they built 26 years ago - need to move due to age.

Their usually friendly neighbours, who have lived in their house for 18 years, have decided to send solicitors letters stating:

That a Conveyance from 1958 - states that their should be a fence and a gate at the end of their boundary. The gate allowing entrance into my parents drive!
Currently and as it has been for 26 years - my parents drive across their owned right of way and in an open driveway to their house. The neighbour is claiming that this area they drive across is indeed his boundary. And that they should be entering their drive via a posted gate further up their owned right of way.

Their land registry naturally does not state the boundaries as so and neither does the neighbours, but he has fished out this conveyance in his deeds that changes things.

Before we go any further I was wondering what may help in law with the fact nothing had been done when my parents purchased the land some 27 years ago to build their house, by the previous tenant of the neighbours, and that the neighbours themselves have not stated anything for 18 years.

I am hoping this is the case as with the Right to Light etc, but despite reading lots I am yet to see good evidence for this. Hoping there is so his case would not stand as it seems his conveyance with it's covenant for the fence and gate, may precede the far more recent land registries.

Should he put up the fence, my parents will be unable to access their house, without removing a large hedged area adjacent to their drive.

We feel he may be trying to bully my parents into gaining more parking area for himself before they sell (hoping they will be easier to push around than a possible new owner). Who knows - all very odd and very upsetting for them as he has been rather rude.

Hoping someone may be able to shed some light. Many thanks in advance.
Piglet : )
Collaborate
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Re: Does use of land for over a certain period of time stand?

Post by Collaborate »

I'm afraid much of that was a word salad. A plan would be useful to understand precisely what the layout on the ground is, and what the neighbour is claiming. Also am I right in thinking your parents bought a plot of land and built their house on it? Not sure what the relevance of this is.

What is important is the rights according to the land registry. Please specify who owns what parcels of land, and what rights of way are contained in the deeds. If your parents have been exercising a right of passage different to that contained in the deeds please specify the route of that on the plan.

What has the neighbour's tenant got to do with anything?

If you want some advice about covenants you will need to post their precise wording.
stufe35
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Re: Does use of land for over a certain period of time stand?

Post by stufe35 »

You probably need to download yours and the neighbours deeds from the land registry.
pilman
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Re: Does use of land for over a certain period of time stand?

Post by pilman »

That a Conveyance from 1958 - states that there should be a fence and a gate at the end of their boundary. The gate allowing entrance into my parents drive!
That sounds like a positive covenant that someone had to erect a fence and gate. If that had been your parents when they bought the land they built on then that would apply to them. If they were not the original covenantors who were a party to the 1958 conveyance they cannot be compelled to observe a positive covenant that would cost them money to comply with.

In any court proceedings with them named as defendants they would not be held responsible for erecting a gate and fence, because the positive covenant cannot be passed on in the same way a negative covenant can, since a negative covenant runs with the land, rather than with the person who initially agreed to the positive covenant.
Currently and as it has been for 26 years - my parents drive across their owned right of way and in an open driveway to their house. The neighbour is claiming that this area they drive across is indeed his boundary. And that they should be entering their drive via a posted gate further up their owned right of way.
There is a method of creating easements known as Prescription.
That needs the owner of one parcel of land to use another person's land in a certain way for over 20 years "as of right".
That phrase meaning openly exercised, without force and without permission.

After 20 years English law concludes that the owner who stood by and did nothing to stop such use of their land had acquiesced to such use, so that it became a legal easement, such as the right of way over the other person's land that you appear to be describing.

It appears that your parents land has the benefit of that right of way, but they are not responsible for erecting a gate or a fence to prevent free use of the right of way.
The neighbour's land now has the burden of the right of way since it has been used by your parents in the same manner for over 26 years.
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