Neighbours blocked their own ROW

stufe35
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Re: Neighbours blocked their own ROW

Post by stufe35 »

If she ever does cut a door through and start using the route, you can fence it then if you feel it advantageous.
pilman
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Re: Neighbours blocked their own ROW

Post by pilman »

There are two latin phrases used to describe the route of a right of way.
The Terminus a Quo meaning the starting point and the Terminus ad Quem, meaning the end point.

What is being described here is that there is no longer a way to reach the end point because the land-owner has erected a building that no longer allows access to the land that had the benefit of the right of way.

While that building remains as a permanent barrier to the end point of the right of way there is no longer a right of way capable of being exercised.

Even if this neighbour was able to convince the owners of the first section of the route to clear a passage across the back of their properties there would still not be an end point as identified as the Terminus ad Quem, so that use of your land would not achieve the sole reason why the right of way was initially granted.

The right of way is not extinguished by the fact there is a building preventing access to the dominant land, because that building could be removed at any time in the future, but until that is done the right of way cannot be used since access to the land with the benefit is no longer available due to the dominant land owner's own actions.

You need to make the neighbouring property owner aware of that aspect of the law, although until clear access is available from the highway end of the route your property cannot be responsible for any obstruction to the granted route, as long as you retain the two gates that would allow access over your land to the dominant land.

The way the current situation has been described there is no physical way the neighbour can access your land, so this seems to be a fuss that the neighbour is causing that is not really your problem. You need to tell her that.
Gardenfairy19
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Re: Neighbours blocked their own ROW

Post by Gardenfairy19 »

That is absolutely amazing. Thank you so much everyone for your replies.
stufe35
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Re: Neighbours blocked their own ROW

Post by stufe35 »

Pilman has summed it up perfectly, but sounds like she would put a door in the back of her summer house and use it occassionally just to be awkward. Hence the wording / action i suggested .... that way she might just feel like she has won ...but never put in a door or use the access and you will continue with your privacy.
stufe35
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Re: Neighbours blocked their own ROW

Post by stufe35 »

Taunt her with the idea she can't currently exercise her right of way, and there will only be one out come......i wouldn't tell your neighbours your new found knowledge either.

Good thing is i guess if worse comes to worse you can put a six foot fence up and let her get on with it.
ukmicky
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Re: Neighbours blocked their own ROW

Post by ukmicky »

What is being described here is that there is no longer a way to reach the end point because the land-owner has erected a building that no longer allows access to the land that had the benefit of the right of way.
Pilman that sort of makes sense and I’ve at least once. previously argued the same thing on this forum.

However I now have a different opinion . The end point is the neighbours land and the wall may stop them from stepping onto their land but It doesn’t stop them accessing the dominant land as the wall is part of the land. (Do you see what I’m getting at)

The ROW is for access to her land but what purpose she uses the ROW for once the neighbour reaches her land makes no difference to the right granted and there is no degree of necessity of use imposed on a user of a ROW only that it’s used to access her land which now includes the wall.

There is also no requirement for someone to actually step onto their land at the end of the ROW . If there was no building there they could for example throw something onto their land from the right of way without entering their land then turn around and walk back out along the ROW .

The neighbour in my opinion arguably has a right to walk on the right of way to access the wall of the building on her land , touch it and inspect it if they argue they want to then turn around and walk out.

It may be a use that is wanted simply to be nasty to the neighbours and minor in comparison to what she could use it for if the building wasn’t there but I would argue the right does exist.
Any information provided is not legal advice and you are advised to gain a professional opinion
pilman
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Re: Neighbours blocked their own ROW

Post by pilman »

We also still have the gates either side at the rear (although the one into her garden only opens a fraction due to the garden room).
This thread is about a neighbour wanting free passage along a granted right of way which is currently blocked by the owners of the other houses in the terrace.

Should she manage to convince the other house-owners to provide access along the parts of the right of way enclosed by fences, it seems as though she could open the final gate in the OP's garden fence that would hit against a wall positioned 200 mm from the boundary fence.

It seems as though ukmicky is saying that this will allow her to gaze at the very small section of the the wall that would be visible through this gap and then retrace her steps to proceed along the length of the right of way to reach the public highway so that she could then walk to the front of her property to enter it, because there is no way she can enter it from the granted right of way.

Based on that analysis and the comments already posted by Gardenfairy19 that he can move a bench and some shrubs once the other part of the right of way is reinstated that will allow access over his land, the scenario envisaged by ukmicky is of such a hypothetical nature as to be capable of being ignored.

As the American's say "Get Real"!
ukmicky
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Re: Neighbours blocked their own ROW

Post by ukmicky »

So the neighbour with the ROW says I need to maintain my wall and require access along all my ROW to inspect the wall.

Scinario which is quite capable of occurring .


None of the neighbours will be able to argue against it.
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pilman
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Re: Neighbours blocked their own ROW

Post by pilman »

So once the other people who are obstructing the right way remove the obstructions this poster should suggest to the neighbour that she should bring a step ladder when she walks along the right of way so that she can stand on it to look over the fence to inspect the wall of the building on her land. Presumably placing the step ladder on the land is an ancillary right, because there is no longer a method of physically accessing the dominant tenement. Trying to prove a hypothetical scenario seems to be confusing the purpose of offering sensible advice. IMHO.
arborlad
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Re: Neighbours blocked their own ROW

Post by arborlad »

ukmicky wrote: Sun Oct 18, 2020 7:05 pm So the neighbour with the ROW says I need to maintain my wall and require access along all my ROW to inspect the wall.



It would be regarded as any other boundary feature owned by the neighbour which abuts the OPs land - it would require the OPs permission.
arborlad

smile...it confuses people
ukmicky
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Re: Neighbours blocked their own ROW

Post by ukmicky »

arborlad wrote: Mon Oct 19, 2020 5:08 am
ukmicky wrote: Sun Oct 18, 2020 7:05 pm So the neighbour with the ROW says I need to maintain my wall and require access along all my ROW to inspect the wall.



It would be regarded as any other boundary feature owned by the neighbour which abuts the OPs land - it would require the OPs permission.
No because this boundary feature is at the end of the ROW .


So there are three basic things a court would consider If the neighbour was to go to court for substantial interference.

The neighbour could actually go two routes a simple injunction or a case of substantial interference with an order for damages . Either way the court will firstly look at is the right itself and determine does it exist in law and if does is free passage along the ROW beImg obstructed . The answer to that one will be yes on both counts as building accross the entrance to a ROW does not extinguished or suspend the right and they are not looking at that yet.

An easement right over land is an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute. What that means is It either runs forever or for a term of years , The right can’t be suspended even if you build across it as it would then not be either above and the law doesn’t allow that. As it can’t be suspended the court would order all obstructions to be removed. The court will not ask itself at this stage how will the owner of the dominant tenement use it before they order an obstructions to be removed as they are only looking so far at the granted right and does it legally exist in law,

The next thing the court will Consider Is damages . Here the court will consider the building that was built across the ROW because if the OP can’t actually get on their land or do anything significant once they reach their land the loss the obstructions have caused will be minor . However the neighbour could say I needed to get to the 20 centimetres of my land that was not built on to check on it and clear it of weeds and then check on the wall and on its condition . That’s probably something that would be considered minor so may not attract much damages but maybe however it is possible for someone to squeeze down a 20 centimetre gap and could still get on their land which could then mean a higher level of damages could be awarded . 20 centimetres , its probably possible for some under the right circumstances .

Then the last thing the court will consider is costs . The OP could say to themselves ,if they were to take me to court they would only win minor damages so I will take the risk . However the OP doesn’t know what would happen when it came to costs and that could be a costly gamble.
Any information provided is not legal advice and you are advised to gain a professional opinion
Collaborate
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Re: Neighbours blocked their own ROW

Post by Collaborate »

Your analysis is flawed. As pointed out upthread, a ROW must be for the purpose of moving from one point (A) to another (B). It only allows movement in transit. It doesn't allow movement that cannot result in the person reaching point B.

And have you checked 20cm n a ruler? Not even an anorexic could squeeze through that space.
stufe35
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Re: Neighbours blocked their own ROW

Post by stufe35 »

My take is that whilst in theory at present the neighbour cannot excercise the right of way, the right exists to enter the right of way to make it fit for purpose so the neighbour could appear at any point.

Also workers could arrive this morning at 9.00am knock down the summer house by 10 and wish to be using the right of way by 10.30am.

No notice is required to be given for the above senarios.

Hence the right of way should remain available on the Servient owners (OP) land and the route should not be blocked.

Just because a dominant owner is choosing not to use a right of way at this moment in time does not license the servient owners to create substantial interferences along its length...because the dominant owner can bring it back into use at any time without any prior notice.

I have stated my advice earlier. If the OP wants to see the continued non use of this right of way, the best way is to appease the neighbours request and move the shrub and seats. Chances are the neighbour will be happy and move on to the next moan. Start making statements like 'you cant use the right of way because you cant get on to your land' and the outcome will most likely be a door in the back of the summerhouse and the right of way being brought back into use. This is not a battle about someone wanting to actually use a right of way...its someone wanting to prove a point and excercise their power and win an argument...let them win and move on is the best solution...other wise it will escalate into actual use of the right of way for the hell of it.

De-escalation is the way forward here not escalation as the OP is doomed to loss of privacy currently being enjoyed by entering a fight.
He can move the seats back next summer when its all forgotten.

By not picking a fight (which seems to the neighbours favorite past time) the OP will put themselves out of the picture as the neighbour will have bigger more interesting fights with the other neighbours on the route that have blocked the gateways. He will become the good guy and will most likely never see the right excercised.

I repeat my previous advice
My suggestion is , if it's easy to move your seats and shrub then do so...in deed really you should not obstruct the right of way in case it is brought back into use it should be available 24/7.

Then write to her saying you are aware of the existence of the right of way and do not dispute it. State that you have not blocked it on your property and it is available when ever she needs it.


Then forget about it and her whilst she focusses her attention on your neighbours.
SwitchRich
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Re: Neighbours blocked their own ROW

Post by SwitchRich »

Any chances of some pictures of the lay of the land here?
ukmicky
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Re: Neighbours blocked their own ROW

Post by ukmicky »

Collaborate wrote: Tue Oct 20, 2020 8:02 am Your analysis is flawed. As pointed out upthread, a ROW must be for the purpose of moving from one point (A) to another (B). It only allows movement in transit. It doesn't allow movement that cannot result in the person reaching point B.

And have you checked 20cm n a ruler? Not even an anorexic could squeeze through that space.
The right exists and if it exists the way must be open for use without substantial interference .

Someone mentioned about the the dominant owner taking a ladder and climbing onto the roof of the garden room . If they wished to do that they could do that but if they canT do it because the Way has been blocked through unnatural means it’s substantial interference.

They also can reach point B if the obstructions are moved. Point B is all the land Including the wall of the garden room as well as something as small as 1mm or less of the 8 inches between the garden room and the boundary.

There is nothing legally that says something substantial must occur once they reach point B. There is nothing Legally that says they must step on to point B or fully enter onto point B. The dominant owner can walk to point B and then turn around and walk back out through A.

They also could place something through the 8 inch gap onto their land ,turn around and walk Back out.

As for getting through an 8 inch gap it would depend on the person ,what is adjacent to the gap for example is the 8 inch restriction only at leg height . I’m sure in your younger years you’ve climbed through something at leg height that was less than 8inch wide.
Any information provided is not legal advice and you are advised to gain a professional opinion
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