Neighbours access to their back garden through mine

GimmeSomeTruth
Posts: 28
Joined: Thu Aug 02, 2012 8:15 am

Neighbours access to their back garden through mine

Post by GimmeSomeTruth » Thu Aug 02, 2012 8:58 am

Hi there,

Although I've used gardenlaw as a source of information in the past, I've never posted before so this is my first time. Apologies if this type of issue has already been covered previously but from looking through the site I couldn't find a specific example to which I could compare.

So, just last week we moved into a lovely semi-detached house which is on a large corner plot complete with driveway and garage. Just before completion, we went back to the property to measure up and met one of the neighbours. We were chatting about our plans for the property and I happened to mention my plans for fencing off the side of the property with a six foot fence complete with gates across the drive and then continuing the fence across the boundary of my drive and her drive. She said she was fine with this as long as she still had access to her back garden.

Straight away this set off alarm bells as the vendor had confirmed on the documents we'd been forwarded from our solicitor that there were no informal rights of way. She explained that the current picket fence separating the two driveways had a small gate at the top of the drive which allowed her to gain access to our driveway, walk down the narrow side alley between our garage and her kitchen extension and then access a gate at the back to get into her back garden. Now I have to point out, we had never before noticed this gate in the picket fence along the driveway or the gate at the back which actually just looks like part of the fence as there is no handle on our side.

I contacted my solicitor straight away and asked him to double check all of the paperwork for any mention of access which he did and confirmed there was nothing. So, once we moved in last week, I explained this to the neighbour and although she reacted calmly she was obviously upset and asked if she could get her own solicitor to look into it before I erected a fence to which I agreed.

I received a letter from her solicitor pointing out that throughout my neighbours 10 years at the property there have been no issues with her access to her back garden via my land facilitated by the gate in the driveway. He also pointed out that this practice carried on an existing arrangement between the two properties which was already in place when their client purchased the property. They're currently working to retrieve documents relating to the sale and purchase of my neighbour’s house to enable them to consider the position and best advise their client.

So I have postponed the fence until further notice which is a bit of a pain considering we have a dog. I completely understand that my neighbour must be upset but from our point of view we were never made aware of this arrangement and impacts upon our privacy.

Now, a little bit more detail; my neighbour did purchase the property 10 years ago but the previous owners bought it in 1996, so if what her solicitor has said is true, the arrangement has been in place for at least 16 years and not the required 20 that I understand is needed to claim prescriptive rights. The previous occupant of my property is deceased and so the property passed to her son who sold it to me and claimed there was no right of way. My neighbours property did once have access to their rear garden via their own driveway prior to an extension being built which went up to their boundary in 1988. The picket fence on the drive was only erected within the past 10 years and I've no way of knowing if there was a gate there previously.

So, my questions relating this rather complex and long winded issue are;

1. If my neighbour were to be successful in claiming a prescriptive easement or right of way, what proof would she have to provide to back this up? Written statements from previous owners of her property covering the past 20 years? Would the sale and purchase documents have to declare this right of way?

2. My vendor has declared there was no access agreement, can I sue them for not declaring it if she is successful?

3. If she is successful, where does this leave me? I had planned to eventually knock the garage down and put up an extension. Can I no longer do this as it would block her right of way?

I apologise for the length of this post but I would appreciate some educated advice on this matter.

Thanks in advance!

despair
Posts: 16413
Joined: Mon Mar 14, 2005 7:07 am

Re: Neighbours access to their back garden through mine

Post by despair » Thu Aug 02, 2012 11:14 am

If there is no formal ROW on the deeds of either property

and clearly if theres no 20 years of uninterupted use then they wont be able to claim Prescriptive Rights

Sounds like the neighbour made a verbal deal with the elderly owner of your house who failed to realise its problems

but if it turns out the neighbour can prove Prescriptive Rights then yes you can sue the vendor for the loss of value and use this has caused you

i guess you can add on costs of selling and moving if it comes to that but you will need legal advice

Mojisola
Posts: 573
Joined: Fri Oct 22, 2010 7:18 pm

Re: Neighbours access to their back garden through mine

Post by Mojisola » Thu Aug 02, 2012 12:00 pm

You can buy a copy of your neighbour's deeds - you don't have to wait for her solicitor.

kipper
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Joined: Wed Sep 02, 2009 8:10 pm

Re: Neighbours access to their back garden through mine

Post by kipper » Thu Aug 02, 2012 1:13 pm

If she "carried on an existing arrangement" this suggests the access was allowed under agreement between the neighbours, therefore prescriptive rights could not be claimed. You have the right to terminate any arrangement.

despair
Posts: 16413
Joined: Mon Mar 14, 2005 7:07 am

Re: Neighbours access to their back garden through mine

Post by despair » Thu Aug 02, 2012 3:08 pm

Yes

Download a copy if the neighbours deeds from www.landregistry.gov.uk for £5 during Business hours

cabbagewhite
Posts: 51
Joined: Sun Mar 20, 2011 6:40 pm

Re: Neighbours access to their back garden through mine

Post by cabbagewhite » Thu Aug 02, 2012 3:14 pm

I think your best option is to be firm from the start. If she thinks she can change your mind she is more likely to continue to involve solicitors, incur costs and then she is more likely to continue pushing for a right of way as she will have started the ball rolling. She thinks you are waiting for her response because the response may change your plans.

If you put up the fence now on the other hand, you are letting her know that you no longer want her on your land and you are going to be firm and if she wants to start a dispute, it is going to be a difficult one for her so making it clear she shouldnt start one.

Now that isnt to say you shouldnt change your mind if she does start down the legal route and it becomes clear that she does have a case but if she decides to accept the situation as you want it then you no longer have a problem.

What you are doing at the minute is encouraging her into a battle by dithering about the fence. She thinks she can persuade you that she has a ROW therefore she is involving solicitors. The further this goes the more difficult it will be for you to erect your fence. Her solicitor is being paid each time he does work for her therefore the longer this goes on the more he'll earn so he has an incentive to support her.

In my opinion she probably doesnt have a ROW to start with, even if she does, then she will have to prove it which will likely be difficult.

You are being overly considerate to someone who has an extension of their own and now wants to use your land to access her back garden and in doing so doesn't mind devaluing your property and stopping you building and extension in the process. Doesn't it sound selfish and inconsiderate whether that is her intention or not? Nip it in the bud and build your fence i say before you end up with a real problem. She had permission, now she doesnt, end of story.

GimmeSomeTruth
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Joined: Thu Aug 02, 2012 8:15 am

Re: Neighbours access to their back garden through mine

Post by GimmeSomeTruth » Thu Aug 02, 2012 3:39 pm

Tanks everyone for the advice. I had planned to continue with putting the fence up but my solicitor advised me to wait and see what her solicitor comes back with so I followed his advice. I think (and hope!) she doesn't have a leg to stand on but will wait and see what her solicitor comes up with.

andrew54
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Location: north yorkshire

Re: Neighbours access to their back garden through mine

Post by andrew54 » Thu Aug 02, 2012 5:06 pm

GimmeSomeTruth wrote:...and I happened to mention my plans for fencing off the side of the property with a six foot fence complete with gates across the drive...
It is likely that you need planning permission for this fence. The height limit, without permission, is one metre when adjacent to highway. Highway includes pavement and grass verge.

GimmeSomeTruth
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Joined: Thu Aug 02, 2012 8:15 am

Re: Neighbours access to their back garden through mine

Post by GimmeSomeTruth » Thu Aug 02, 2012 6:58 pm

Thanks andrew54, I had read the below on the planning portal website but was unsure what the definition of a highway was? I live on a quiet residential area, would this be classed as a highway?


You will need to apply for planning permission if you wish to erect or add to a fence, wall or gate and:


it would be over 1 metre high and next to a highway used by vehicles (or the footpath of such a highway); or over 2 metres high elsewhere; or
your right to put up or alter fences, walls and gates is removed by an article 4 direction or a planning condition; or
your house is a listed building or in the curtilage of a listed building.
the fence, wall or gate, or any other boundary involved, forms a boundary with a neighbouring listed building or its curtilage.

andrew54
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Location: north yorkshire

Re: Neighbours access to their back garden through mine

Post by andrew54 » Thu Aug 02, 2012 10:11 pm

GimmeSomeTruth wrote: I live on a quiet residential area, would this be classed as a highway?
Yes, in almost all cases every street, road, footpath etc is a Highway. Grass verges are part of the highway. The one metre height restriction applies to Highways that are carriageways (roads) and usually this is interpreted to mean any path or grass verge next to a road. The height restriction does not apply if there is simply a footpath, but no road.

pilman
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Re: Neighbours access to their back garden through mine

Post by pilman » Thu Aug 02, 2012 10:30 pm

I received a letter from her solicitor pointing out that throughout my neighbours 10 years at the property there have been no issues with her access to her back garden via my land facilitated by the gate in the driveway. He also pointed out that this practice carried on an existing arrangement between the two properties which was already in place when their client purchased the property. They're currently working to retrieve documents relating to the sale and purchase of my neighbour’s house to enable them to consider the position and best advise their client.
It is correct that a period of 20 years has to be proven for a prescriptive easement to be established in law.
The fact that the solicitor acting for th eneighbour is prepared to concede that there has only been 10 years use by the current owner is very relevant, as is the mention of the "arrangement" between the previous owner from 1996.

That still only shows 16 years use of the right of way as well as implying that there was an agreement reached between the original parties so that permission was granted for this "informal" arrangement between consenting neighbouring land-owners.

None of that has any bearing on how you can choose to utilise your property.

I am surprised that your own solicitor did not make that clear to you but instead suggested that you wait to hear back from the neighbour's solicitor. There is no point of law that any solicitor can come up with that will support a claim that use by permission can be converted into a legal obligation that can be imposed on any owner in the future to compel them to continue such an arrangement.

If yiou intend to separate the side boundary with a 2 metre high fence it would be good to go ahead and do that.

At the front of the property adjacent to the pavement, permitted development will restrict the height of a gated entrance to 1 metre, so if you want anything higher you will need to make a planning application at a cost of £150.

When the time comes to make a planning application for an extension, just ensure that you have the building located inside your own boundary with enough room to have the gutters and down pipes located entirely inside your own land.

GimmeSomeTruth
Posts: 28
Joined: Thu Aug 02, 2012 8:15 am

Re: Neighbours access to their back garden through mine

Post by GimmeSomeTruth » Fri Aug 03, 2012 10:17 am

Thanks everyone for the advice. I didn't realise I'd need planning permission for the 6 foot fence adjacent to the road. There are quite a few nearby houses with similar fences recently put up but on searching through my local councils historical planning applications online, theres no mention of these so I'm wondering if they've sought advice and been told by the council that an application is not necessarry in this area perhaps. I will contact the council.

pilman
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Re: Neighbours access to their back garden through mine

Post by pilman » Fri Aug 03, 2012 12:04 pm

I didn't realise I'd need planning permission for the 6 foot fence adjacent to the road.
All development needs planning permission, but some things can be done because the Government grant planning permission under the Town and Country Planning (General Permitted Development) Order.
That is where the maximum height for fencing and walls is shown in Part 2.

If someone does erect a high wall adjacent to a highway used by vehicular traffic, (the words used in the GPD0) that is a breach of planning control that "could " result in an Enforcement Notice being served by the local council. Sometimes that is not done and after 4 years such a high wall becomes lawful, because the time limit for issuing an enforcement notice expires after 4 years.

That is how many people deal with the situation when they want high gates across their entrance.
They wait to see if there is an objection after the event, then a retrospective planning application is made.

People who intend to observe the planning laws will spend £150 and make a planning application, but that could always be refused.

Just thought I'd clarify the way things are often dealt with in respect of this height restriction when a wall or fence or gate is adjacent to the highway used by vehicular traffic. Personally I never understood why a pavement is considered to be used by vehicular traffic.

The fact that a 20 feet high hedge of leylandii next to and over-growing across the pavement is acceptable, makes one wonder who made up these rules. :lol:

andrew54
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Location: north yorkshire

Re: Neighbours access to their back garden through mine

Post by andrew54 » Fri Aug 03, 2012 3:34 pm

pilman wrote: I never understood why a pavement is considered to be used by vehicular traffic.
pilman, I'm sure you know it is the HIGHWAY that is used by vehicular traffic, and the pavement is part of that highway.

High fences along all our streets and roads would not look good.

GimmeSomeTruth
Posts: 28
Joined: Thu Aug 02, 2012 8:15 am

Re: Neighbours access to their back garden through mine

Post by GimmeSomeTruth » Tue Sep 04, 2012 6:58 pm

Well I've now received a letter from my neighbours solicitor informing me that he's located the property information form which was issued to my neighbour when she purchased the property in 2003 from the previous owners. He's forwarded me a copy and where it asks about access to any neighbours land, the previous owner has stated that; 'an informal agreement exists whereby we access our back garden gate via the neighbours driveway".

My neighbours solicitor says that as the extension was erected in 1988 he is satisfied that a right of access has existed since this time and his client has an enforceable legal right to access which she's instructed him to maintain. Her solicitor has 'invited' me to confirm that I'm willing to continue this arrangement and has said his client will only require access 'occassionally'.

Now, I may be wrong but as far as I can tell, legally I can cancel any informal agreement, can anyone confirm this?

But, if I'm incorrect, is it not up to my neighbour and/or her solicitor to prove that a right of access has been maintained for over 20 years if I tell them I do not want them accessing my land anymore?

I was under the impression, from some of the advice I've received on here and elsewhere online, that where an informal agreement exists, it does not translate into a legal obligation which I must abide by but after receiving the letter as detailed above from a solicitor, I am beginning to doubt myself!

Please help!

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