Does a gate constitute part of a footpath?

mr sheen
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Re: Does a gate constitute part of a footpath?

Post by mr sheen » Tue Feb 17, 2015 2:53 pm

arborlad wrote:
mr sheen wrote:The locked gate is not a 'new obstruction' it is a long-standing feature.
tlm wrote:It is a wooden gate, set in an old stone archway. As far as I'm aware the old gate was never locked (I presume it was not capable of being locked)..
Fact that gate was locked on purchase and informed by solicitors vs hearsay predating OP even living there.

arborlad
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Re: Does a gate constitute part of a footpath?

Post by arborlad » Tue Feb 17, 2015 4:40 pm

tlm wrote: - as a result I've arranged a meeting with our solicitor to clarify the situation..

That's probably a wise move. In the interim, the more history you can gather surrounding the gate and its subsequent locking the better. If the previous gate was locked there would be keys, or knowledge of keys being passed on. As the easement to use that path belongs to the property, any legitimate visitor should be able to use that route, a key wont help in those circumstances. Postman, milkman, dustman etc., all like to use the shortest route they may be able to help. Have a look at the stonework of the arch, there should be evidence of previous hinges or snecks.
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MacadamB53
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Re: Does a gate constitute part of a footpath?

Post by MacadamB53 » Tue Feb 17, 2015 5:10 pm

Hi tlm,

the path was closed illegally so I think we have a very good case.

no crime has been committed; causing a "substantial interference" with the right of way is a civil matter so it should described as 'unlawful' rather than 'illegal'.

just trying to help - not being pedantic (honest :) )

Kind regards, Mac

arsie
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Re: Does a gate constitute part of a footpath?

Post by arsie » Tue Feb 17, 2015 5:12 pm

tlm, as you know I have posted several times and I agree with your position. He seeks to recover all his costs in replacing the gate and installing a lock. I believe he has no grounds for refusing you your right of way. A gate and a lock I don't think are 'part of' a right of way on foot. And if by some miracle they were, he has made no attempt at 'a fair proportion' but just wants 100% and is holding you to ransom which he cannot lawfully do.

In the meantime is there reason he wants to block the right of way (as well as recovering his costs from you that have the right to use the way!) Do you have any idea of the reason? If this is a private way I'm slightly baffled why Health & Safety is an issue. Surely 'Private Land Keep Off' is all he needs? And once such a notice is posted the clock stops on a general public right of way being earned by prescription, I think.

tlm
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Re: Does a gate constitute part of a footpath?

Post by tlm » Tue Feb 17, 2015 5:36 pm

MacadamB53 wrote:no crime has been committed; causing a "substantial interference" with the right of way is a civil matter so it should described as 'unlawful' rather than 'illegal'.
Point taken, thanks - it's important that we use the correct wording with the owners, as I can see illegal has different connotations to unlawful.
arsie wrote: In the meantime is there reason he wants to block the right of way (as well as recovering his costs from you that have the right to use the way!) Do you have any idea of the reason?
No, I could only speculate. The pathway is about 10 feet wide so would add considerably to their gardens (there is currently a hedge separating the two).

ukmicky
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Re: Does a gate constitute part of a footpath?

Post by ukmicky » Tue Feb 17, 2015 5:47 pm

Arsie is correct..

The servient owner cannot increase the burden on the dominant owners without their permision. The burden on the OP is the same as it would have been if they purcahsed their house before the gate was erected.


Even if it could be said that the OP had Acquiesced ,as the substantial interefence is actionable in court and it pre-empted any possible Acquiescence equity will not allow any claim by the servient land owner to succeed.


The most basic princple of equity is , Equity will not reward someone who has done wrong.

.
Any information provided is not legal advice and you are advised to gain a professional opinion

arsie
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Re: Does a gate constitute part of a footpath?

Post by arsie » Tue Feb 17, 2015 7:33 pm

Playing devil's advocate: solicitors advice at around £150/hour compares with only £165 each if the six of you go even shares to meet the £1k ask. This may be better than costly legal action on a point of principle.

Without for one moment accepting he is acting lawfully, why not offer agreement to £60 now plus £15 annually from next year? He would thus recover his outlay in simple terms after 7 years. After that he is quids in and your annual subs should take care of maintenance henceforth even with an RPI index (0.3% at present!)

Or maybe agree to split it seven ways (i.e. he pays one share) which I make £38 up front then £15 annually?

Just a thought.

hzatph
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Re: Does a gate constitute part of a footpath?

Post by hzatph » Tue Feb 17, 2015 7:44 pm

ukmicky wrote:Arsie is correct..

The servient owner cannot increase the burden on the dominant owners without their permision. The burden on the OP is the same as it would have been if they purcahsed their house before the gate was erected.


Even if it could be said that the OP had Acquiesced ,as the substantial interefence is actionable in court and it pre-empted any possible Acquiescence equity will not allow any claim by the servient land owner to succeed.


The most basic princple of equity is , Equity will not reward someone who has done wrong.

.
+1

The obligation to contribute to the cost of repair and maintenance only extends to reasonable costs so you can exercise the right. The gate does not fall into that category. This is in addition to all the comments others have made. As the right rests with the land and not owner, it is irrelevant for the current purposes that it was locked at the time of purchase.

MacadamB53
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Re: Does a gate constitute part of a footpath?

Post by MacadamB53 » Tue Feb 17, 2015 8:21 pm

Hi tlm,

have you any real intention of using the "way" once it's open for use?
are you finding the current lack of availability a major inconvenience?
or are you trying to prevent the owner incorporating the land into his garden "out of principle"?

Kind regards, Mac

span
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Re: Does a gate constitute part of a footpath?

Post by span » Tue Feb 17, 2015 11:35 pm

This entire thread is in danger of navel-gazing.

If you're going to see a lawman, make sure it's someone with experience in ROWs. Be prepared for him to take on your case to build up fees for himself.

Or, just tell your enemy that he either removes the lock or you chop it. As you will with every subsequent lock he puts up. Then negotiate proper payment of any money due him.

in other words, just do it.

arsie
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Re: Does a gate constitute part of a footpath?

Post by arsie » Wed Feb 18, 2015 9:31 am

+1 for span's approach. Res non verba.

arborlad
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Re: Does a gate constitute part of a footpath?

Post by arborlad » Wed Feb 18, 2015 11:51 am

tlm wrote:Thank you very much for all your useful comments. Whilst the consensus appears to back our position, I realize that it is not clearcut -.

That is the nature of forums - you will get advice from all ends of the spectrum.

This thread has similarities to yours - it is long :) http://www.gardenlaw.co.uk/phpBB2/viewt ... =8&t=10012


What, if anything, is written in the owners deeds regarding this ROW?
Last edited by arborlad on Wed Feb 18, 2015 12:13 pm, edited 1 time in total.
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arborlad
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Re: Does a gate constitute part of a footpath?

Post by arborlad » Wed Feb 18, 2015 12:04 pm

mr sheen wrote:
arborlad wrote:
mr sheen wrote:The locked gate is not a 'new obstruction' it is a long-standing feature.
tlm wrote:It is a wooden gate, set in an old stone archway. As far as I'm aware the old gate was never locked (I presume it was not capable of being locked)..
Fact that gate was locked on purchase and informed by solicitors vs hearsay predating OP even living there.

If a locked gate existed at the time this was drafted, that might support your view - otherwise..........

"Arborland, the deeds state:

"(in common with the Vendor and its successors in title and all persons authorised by it or them) to pass and repass but on foot only over the footpath coloured mauve on the said plan the Purchaser and his successors in title paying a fair proportion according to use of the expense of repairing and maintaining the said footpath.""
arborlad

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tlm
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Re: Does a gate constitute part of a footpath?

Post by tlm » Wed Feb 18, 2015 9:27 pm

arborlad wrote: This thread has similarities to yours - it is long :) http://www.gardenlaw.co.uk/phpBB2/viewt ... =8&t=10012


What, if anything, is written in the owners deeds regarding this ROW?
Phew, 35 pages! I don't want this thread to go the same way. I'm going to leave off now and maybe update in a few weeks with any developments. Thanks again.

ps. The owners deeds mention the ROW with exactly the same wording as ours.

arsie
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Re: Does a gate constitute part of a footpath?

Post by arsie » Thu Feb 19, 2015 1:45 am

tlm,
I don't think this thread is anywhere near the outpourings and 'spam' of that other thread. In much less virtual space you have received plenty of on-topic advice, from many angles, and I for one await developments with interest. I don't think there is a lot else that can be said that has yet not been said. Good luck. Keep us posted.

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