"It has been said that no hard and fast rule emerges from the cases but that the guidance that they do afford is that, whilst the servient owner may not derogate from the grant, the dominant owner may not make unreasonable demands. What would, in a particular case, constitute a derogation from the grant and what would constitute an unreasonable demand depends on the proper construction of the grant and then on the factual circumstances."
In layman's terms the rule that a grantor may not derogate from his grant means that you cannot give with one hand and take back with the other.
Bearing in mind what Gale says, we can consider various scenarios.
The first is where the document granting the right refers to an existing gate or allows the grantor to erect a gate. In that case, so long as the gate does not prevent the right from being exercised according to the terms in which it was granted, the gate can be retained.
The second is where the gate is in existence at the time the right was granted. Here I think the position is the same as where the grant refers to the gate. The difference is that there is no written record that the gate was there at the time of the grant.
Next is the situation where there was no gate when the right was granted and the owner of the way wants to put an unlocked gate on it. Since most rights of way are granted in general rather than narrow terms (and because it would otherwise make this post too long) I shall assume that the grant, whether or not expressed to be pedestrian or vehicular, is not restricted in some way. What then needs to be considered is whether the erection of the gate cuts down the right in some way. First, the gate must not narrow the width of the way. Secondly, it must not make the exercise of the right significantly more inconvenient. In most cases the erection of a gate is not going to make the use of a pedestrian right of way more inconvenient. It is going to be more difficult if the right of way is vehicular because that involves getting in and out of vehicles, and if the gate is next to the highway road safety issues may be involved.
Finally, we have the situation where the owner wants to erect a locked gate. What is important to remember here is that a right of way is exercisable not only by the owner of the property which has the benefit of the right, but also by all persons with legitimate business at his property. The right must be freely exercisable at all times. Accordingly, a locked gate, even where a key is supplied, is always going to be an obstruction. Any security issues the owner of the way has cannot be taken into account.
Conveyancer’s final and penultimate paragraphs will be seen to cause much consternation, for in many respects it may be viewed as a ‘tying of hands behind the back’ for the legitimate owner of the ROW.
They would simply have had an outside loo and a veggie patch ,maybe some chickens and compost pile so nothing was ever wasted or thrown out
The problems come today with very different lifestyles and sadly a minority of ignorant /arrogant bullying types who take advantage of the situation and make other genuinely nice peoples lives a misery as it is with the latest case on this forum
This is to look at the position from the point of view of the owner of the way.SYLVA wrote:Conveyancer’s final and penultimate paragraphs will be seen to cause much consternation, for in many respects it may be viewed as a ‘tying of hands behind the back’ for the legitimate owner of the ROW.
When land is subdivided the part sold may need access over the part retained. Since the system is such that joint ownership of the access route effectively has to be ruled out, the way this is done is to grant a right of way over the land retained. Once you have granted a right of way you have for most practical purposes given up control over the land over which it is exercisable. The buyer wants to be able to use the access with the same freedom he would enjoy if he owned it. The right of way (not to be confused with the land over which the right is exercised) is as much part of his land as any building on it.
As a matter of law, the owner of the access does in fact have more rights than the person entitled to the right of way. The latter may only use the access according to the terms of the grant; he has no standing to prevent trespassers from using the access (though he can take action against any third party who interferes with the right); he has no right to improve the access. The owner can use the access for any purpose he likes so long as it does not interfere with the exercise of the right; he can grant rights to others; he can improve the access.
However, if you own land and a right of way is exercised over part of it, the way to look at it is that you own the different parts in different ways. Your ownership of the part not subject to the right gives you control over it; your ownership of the part subject to the right severely curtails what you can do with it. In a sense, you and the person with the right of way in fact have some sort of a joint ownership in the access. If the owner of the access starts to think in terms of "I am the landowner and have more rights over the access than the person entitled to the right of way" he is sooner or later going to run into difficulty.
An Englishman's home may be his castle, but he has to raise the portcullis and let down the drawbridge if someone has a right of way over it.
In this respect many of us are all guilty of reading , using and quoting piecemeal slices of information as long as it suits our needs, but with a tendency to ignore the overall picture.
Obviously what is missing is a clear factual list of ‘can and cannot’ that is common to both the Dominant and Servient parties.
It would be very advantageous to have a government led scheme whereby for a reasonable fee a current ROW could be given a 'makeover' and rewritten in plain language by a specifically appointed legal person/dept delegated to visit on site to resolve an ongoing dispute.
We live in a world of information, or rather a world where a huge amount of information is readily available. Information about the law was always freely available, for example by making a trip to your local library - from where in fact you probably stand a better chance of getting correct information than on the internet (unless of course I am around and your question is about rights of way!). The internet is a great resource, but unfortunately as well as allowing access to information it allows access to disinformation. I do not mean here deliberate misinformation (though there is plenty of that) but opinions expressed by well-meaning persons who do not have a firm grasp of what they are talking about. This has given rise to a number of sacred cows which I make it my mission to slay!SYLVA wrote:Whilst Conveyance’s thread has opened up some true realities of factual knowledge based areas of the principles governing a ROW, the indications demonstrated by many of the previous postings (ROW.) clearly indicate a minefield of supposition from all parties concerned.
To repeat what I have said elsewhere:SYLVA wrote:In this respect many of us are all guilty of reading , using and quoting piecemeal slices of information as long as it suits our needs, but with a tendency to ignore the overall picture.
1. Lawyers do not always get the law right
2. A layman is quite capable of discovering the law on a particular point
Even so, amateur lawyering is fraught with danger. The temptation for the layman is to try and home in on the particular without understanding the general. The problem is particularly acute when it comes to land law. Ask any law student who has completed his studies which subject puzzled him most and I will bet a shilling to a pound that he will say land law.
That I am afraid is just exactly what is not possible. As Gale says above: there are no hard and fast rules. Not unreasonably, many people consider the law to be complex. This is not the fault of lawyers. It reflects the wide variety of situations that can arise, not to mention man's capacity for ingenuity.SYLVA wrote:Obviously what is missing is a clear factual list of ‘can and cannot’ that is common to both the Dominant and Servient parties.
As I have also said before, simple rules strictly applied can lead to injustice. The history of English law is a record of the tension between the desirabilty for certainty and the need to see justice done. The law is not though either chaotic or a mass of uncertainty; there is much more certainty (even if complex) than uncertainty.
I said some time ago that I think that some form of tribunal to sort out disputes over rights of way, boundary disputes and the like would be welcome. However, whilst I think that such a tribunal should be able to intrepret what a particular form of words means and how it is to be applied in the circumstances of the case, I do not think it should go so far as to rewrite the terms of a grant for the benefit of one party simply because that party argues that circumstances have changed. A right of way is as much part and parcel of a property as what is on it. It can be no more be right to cancel or cut down a right than to declare that one owner has the right to use his neighbour's shed because he would make better use of it.SYLVA wrote:It would be very advantageous to have a government led scheme whereby for a reasonable fee a current ROW could be given a 'makeover' and rewritten in plain language by a specifically appointed legal person/dept delegated to visit on site to resolve an ongoing dispute.
However Conveyancer has said the benefit is there for anyone who has relations/business with the dominant neighbour, but in my deeds I read differently..
TOGETHER WITH all rights or quasi rights and easements or quasi easements in the nature of light air way drainage passage of water and soil drip and other privileges of a contiguous nature heretofore used and enjoyed by the Vendor and the occupiers of the property hereby conveyed in through and over the adjoining properties Nos 34, 36 and 38 aforesaid EXCEPT AND RESERVED unto the owners and occupiers of the adjoining properties all rights or quasi rights and easements or quasi easements in the nature of light air way drainage passage of water and soil drip and other privileges of a contiguous nature herefore used and enjoyed by the owners and occupiers of the said adjoining properties in through or over the property hereby conveyed in all respects as if such rights or quasi rights and easements or quasi easements had been acquired by prescription.".
Does this not give leave of that point as it clearly says to me that the enjoyment we all have over each others properties is to only be enjoyed by owners and occupiers, all of whom have been provided with the access code?
- Posts: 5207
- Joined: Sat Sep 27, 2008 10:13 pm
- Number of Posts per Page: 20
- Number of topics per page: 20
- Location: London
The problem i have with saying you can not lock gates is that London councils do it all the time for rear access to properties where the residents have ROW's some through prescription and some with the easesment written on their deeds.
Theyve done it for security reasons and give residents keys. These are properties that were built in the thirties and previously enjoyed ungated rear vehicular and pedestrian access.
If this was not allowed the councils would potentially be sitting on thousands of claims for interference with the total damages in theory running into the millions. If it were one council doing this i could see this happening due to someone not checking out where they stand legally but i cant see them all not looking into the legal issues first ?
Also the right may go with the land but surely the paper title owner of the dominate land is responsible for determining who has a legitimate right to use the right of way for a purpose to do with his or her land for any access not to amount to a trespass.
In other words he must give permission for someone to exercise the right which goes with his land and therefore if he has a key for a lock, why would it constitute a substantial interference as it would be a simple mater to hand over the key to the person he has said may use the ROW which his property has rights to use. For an interference to be actionable it must be substantial would the minor inconvenience of having to unlock the gate amount to substantial. ?
Their are also many instances where the ROW is for a specific purpose that it would be hard to argue that someone other than someone directly connected to the land would have a legitimate reason to use and therefore a key supplied to the property owner should i would have thought be enough to prevent a interference claim.
Our own house was once a farm, and would have had the same situation, but the gates have long gone so presumably the right has lapsed.
I know of a stretch of public road which has gates at each end. As a child I remember these were normally kept shut, and I had to hop out and open and shut each gate as we passed. When I last passed the gates were still there, and signposted, but appeared to be normally left open.
A right of way that is an easement attaches to property and not to people. Any reference to owners and occupiers is simply a formula. It is not to be taken literally as meaning that the only persons entitled to exercise the right are the owners and persons who live in the property. Anyone with legitimate business at the property benefiting from the right may use the right.foxyloxy wrote:Does this not give leave of that point as it clearly says to me that the enjoyment we all have over each others properties is to only be enjoyed by owners and occupiers, all of whom have been provided with the access code?
In any event, in this case the rights are not expressed to be granted to owners and occupiers. It says that the property is to have such rights as have previously been exercised by owners and occupiers.
There is no significance in that. Deeds used to be written as continuous text. To enable the different parts to found easily certain head words were written in capitals. The practice continued when deeds started to be typed and set out in paragraphs.foxyloxy wrote:I mean that statement has been done in capitals, clearly to enforce it, I merely put it in bold and the other words underlined
What I said in the first post is land law (or at least what I think is the law). It may be that highway authorities have the power in certain situations to gate private footpaths. I have never heard of such a power, but if it exists it is really outside land law and of course is only going to be exercisable by highway authorities. Highway authorities do though have the power to make gating orders in respect of certain public highways. The question is whether such an order can be made over a public footpath in respect of which private rights are also enjoyed. I would have thought not unless consent was obtained.ukmicky wrote:Conveyancer etc
With rights of way that are easements the best thing is think of them as part of the property they benefit, so that anyone who is entitled to be on the property (because he has the implied or express consent of the property owner) is entitled to use the way. There can only be an exception if the right of way is restricted in some way.
So, whilst erecting a locked gate on an access would not necessarily be an inconvenience if the only person entitled to use the way was the owner (and of course that is never the case) it has to be a serious impediment because the right can only be used if the owner is there to unlock the gate.
I wonder if it changes anything if it was not a lock and key but a keypad lock, that would then mean anyone could have access if the owners or occupiers expressed a wish for others to use the gate ie if they had a delivery that they would not be home for they would simply provide the key code?
it was originally the police that recommended locking it so that we were all safe as we had several incidents where people we did not know wandered into the garden and subsequently into the next gardens where there were loose dogs that attacked!
The problem remains for me that I feel my deeds do not give clear indication of the rights and restrictions
If a ROW is for the benefit of, and provided to, a property and is established ‘for all purposes’ does that not mean that it can be used by anyone with legitimate business at that property?
My neighbour has advised me that he intends to lock the gate to the ROW over his land but he will give me the key. This ROW provides access to my front door and has been, for the last 25 years and more, the means by which post and other deliveries are made to my house. The easement was made by a previous owner of my property on selling the adjacent house and provided a right of way ‘for all purposes’ over the path connecting this property to the public highway. My solicitor now tells me that my neighbour probably has the right to lock the gate as the ROW is for our benefit only, and not for anyone who may want to visit or carry out a delivery. This flies in the face of your previous comment that a ROW such as mine must have been established for the benefit of all persons with legitimate business at this property. A locked gate must therefore be an obstruction to the ROW.
Do you think that I should challenge the solicitors view?