Neighbour obstructs Private Right of Way

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Dorje
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Neighbour obstructs Private Right of Way

Post by Dorje » Fri Jan 22, 2016 12:00 pm

I acquired the freehold of a rural one acre property two months ago. It is my principal residence. I intend to live and work at the property, and build a small workshop in the next year. The land slopes at 30˚.

In order to access the site where the workshop will be built I require the use of a Deeded Private Right of Way about 100 metres in length. It has been unused since its inception in 2010. The person who sold the property to me sold off half of her land to others at that time. She retained the Right of Way across the land thus sold so as to retain a means of access to the portion of her retained land which is otherwise accessible to vehicles only by impractical roadworks. This 'field' comprises about two thirds of an acre.

The Deed states, in part:

"Rights reserved for the benefit of the Retained Land
The Transferor reserves out of the Property for the benefit of the Transferor, her successors in Title and those authorised by them and for the benefit of each and every part of the Retained Land the following:
a) [unrelated to the ROW]
b) The right to pass and repass with or without vehicles and animals at all times and for all purposes over and along the Access."

The Access is defined elsewhere in the Deed as follows:
"The Access" means that part of the Property shown by a dotted blue line on the Plan which shall be two metres in width throughout."

On November 15th. 2015, four days after I moved in, my neighbour asked me what I intended with the ROW. I told him I may use it to construct a cabin for our private use. I now realise I must build my workshop on that site as the previous plans I had have proven impractical.

On January 4th. 2016 I wrote to him saying I am ready to 'use the ROW' and would he please make it clear by January 18th. He responded by saying he had cleared it and constructed a third 2 metre gate across it, trusting this would 'relieve your anxiety'. (The two existing 3.7m gates across it serve no function: one of them has never had a latch attached to it and swings in the wind. His chickens are frequent visitors to our garden. One of these gates opens only partially such that a vehicle cannot pass and a stressed out fellow pushing a wheelbarrow of censored, can. He freely admitted to 'running around like a chicken with his head cut off' to myself and another neighbour in passing, just weeks before Christmas.)

He added that he had locked all three gates and would provide me with keys. He has not locked the gates, yet. He has hung some chain around one gatepost. He asks that I notify him when I intend to use the ROW, 'so that parked cars may be removed from the ROW and visitors warned'. He goes on: the ROW must be used 'as is', must not improved in any way, must be repaired if damaged, is too steep and wet for vehicles etc. etc.

He states: 'These are accepted modes of conduct for use of these rights of way. We really don't want to see you get stuck or in a mess there....Our field is used for livestock, we will be reintroducing some sheep to the land soon. We will secure all the gates and we will ask you to keep them closed and locked. We will provide you with keys.'

He has just laid posts for a fence on one side of the ROW, to complement and parrallel the fence already built on the other. These two fences are now, on average 2.1 metres apart. I believe he has overlooked the fact that when the fence is completed by his attaching the wire which is onsite, users of the ROW will be obliged to exit and enter their vehicles via their rear accesses in order to operate the gates.

I have told him that I am engaging solicitors. He claims this is unnecessary and offers mince pies, wine or tea. My concern is that he is my new neighbour and I am having trouble seeing how I can gently remove his rose tinted spectacles without causing him to go ballistic.

Case law indicates I have a right to develop his land on the ROW such that a vehicle can safely use it. Secondly, that gates must be left open during business hours. Thirdly that more than one locked gate meets the test of 'substantial interference' and is unlawful. In my view he can easily remove all gates to no detriment to himself and construct a fence and gate on the edge of the ROW instead of across it, without loss of any benefit of his land.

I am assuming that his running livestock across the ROW is both ill advised and unlawful as it may require users of the ROW to herd livestock while simultaneously navigating a motor vehicle. Should any accident or escaped livestock occur the users of the ROW would likely be liable because they had opened a gate.

***

Case Law - For instance (found elsewhere on this Forum):

Newcomen v Coulson (1877) 5 Ch. D. 133
Now it was conceded to be the principle of law that the grantee of a right of way has a right to enter upon the land of the grantor over which the way extends for the purpose of making the grant effective, that is, to enable him to exercise the right granted to him. That includes not only keeping the road in repair but the right of making a road. If you grant to me over a field a right of carriage-way to my house, I may enter upon your field and make over it a carriage-way sufficient to support the ordinary traffic of a carriage-way, otherwise the grant is of no use to me, because my carriage would sink up to the naves of the wheels in a week or two of wet weather. It cannot be contended that the word "repair" in such a case is limited to making good the defects in the original soil by subsidence or washing away, it must include the right of making the road such that it can be used for the purpose for which it is granted. Therefore I think the Defendants have a right to make an effective carriage-way going, as they are going, by the shortest route, and not interfering with the land to a greater extent in width that the width of the street pointed out by the deed itself."
• Unlike the judge, who appears to have derived from Newcomen the proposition that only the bare minimum could be done by the grantee of a right of way to make the way effective, I do not read the words of the Master of the Rolls as indicating some limit on the standard of "streeting out". There is no indication that this court disapproved what Malins V.-C. had said in the sentence which I have cited. The only restriction on what could be done was the prescribing of the maximum width of the way if "streeted out".
• In Mills v Silver [1991] Ch 271 this court considered what a prescriptive right of way entailed. Dillon L.J. (with whom Parker and Stocker L.JJ. agreed) thought it clear that grantees of such a right of way were
entitled to repair, as opposed to improve, the road. But he went on to contrast that with the position if there had been an express grant of a right of way. He said, at pp. 286 - 7:
"In the second place if the first and second defendants or their predecessors had been expressly granted a right of way for all purposes with or without vehicles over the disputed track that would have entitled them not merely to repair the disputed track but to improve it to make it suitable for the accommodation of the dominant tenement even if the dominant tenement was to be used for some purpose not in contemplation at the time of the grant: see Newcomen v Coulson (1878) 7 Ch. D. 764. This is founded on the presumed intention of the grant. In the simplest case, if a general right of way is granted with or without vehicles, which is to be the principal access to a house, it is permissible for the grantee to improve it by making it up as a carriageway: see for instance Gerrard v Cooke (1806) 2 Bos. & Pul. 109" (The reference given for Newcomen is an obvious error for (1877) 5 Ch. D. 133, being a reference to a report on another point in subsequent proceedings in the same action.)

***

My neighbour tells me that he regrets signing the Deed, that it doesn't say what he wanted it to say, that it has never been tested. He does not deny that he signed his mark to the words. Indeed, he says that he has found out to his 'cost' that he did so. It is clear to me that the sudden need for construction of a gate and the stated intention to lock all three gates (with the consequent redundancies of both repetition and lack of need) is an unlawful effort to deny my rights based on his own regret for applying his signature to a document which he did not contemplate and which he further failed to persuade my vendor to rescind prior to completion despite his considerable effort.

He also claims to be too busy to talk while simultaneously constructing gates and fences across my ROW. As such, a court action appears inevitable.

Any comments?

MacadamB53
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Re: Neighbour obstructs Private Right of Way

Post by MacadamB53 » Fri Jan 22, 2016 12:35 pm

Hi Dorje,

the case law cited covers making the track suitable for use - you've got that point sorted.

I'm not aware of there being any case law regarding keeping gates unlocked during business hours in a situation where no business existed and locked gates did exist when the deed was made...

I disagree that having two locked gates does qualify as 'substantial interference' - it might, depending on the facts of the case (such as did the gates exist at the time the deed was made...)

I'm not sure why you wrote to him asking for the track to be cleared - had he left something there which was causing an obstruction?

Kind regards, Mac

Collaborate
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Re: Neighbour obstructs Private Right of Way

Post by Collaborate » Fri Jan 22, 2016 12:39 pm

2m is very narrow. For example a Ford Mondoe is over 2m wide. A focus in 1m83cm. Not a very vehicle friendly width that.

If the current surface is not fit for use by motor vehicles you can, at your own cost, improve it.

3 gates locked would in my view represent a substantial interference with your ROW (there have been cases where one locked gate has been held to constitute a substantial interference), but if he keeps livestock in the filed there may be a legitimate reason for him to have one gate, but that need not be locked. If it's poultry that he keeps then a standard barred gate would be of little use to him.

My own view is that if he locks the gate you could use force to break the lock or chain, but that comes with the risk of any court finding you to have been unreasonable to do so, and thereby you would be committing an offence.

Far better to speak to him, explain your position, and take it from there. Whilst he may regret signing the transfer that contained the ROW, the fact remains that he did, and he should not act as if he can now frustrate it.

arborlad
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Re: Neighbour obstructs Private Right of Way

Post by arborlad » Fri Jan 22, 2016 12:50 pm

Dorje wrote:He has just laid posts for a fence on one side of the ROW, to complement and parrallel the fence already built on the other. These two fences are now, on average 2.1 metres apart.

Does he own the land on both sides of the track?
arborlad

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Dorje
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Re: Neighbour obstructs Private Right of Way

Post by Dorje » Fri Jan 22, 2016 12:57 pm

Hi Mac,

Thanks for your interest.

The Deed required my neighbour to construct a fence dividing the two newly created properties in 2010, and install a vehicular gate at the point where the ROW meets it. That gate has never been locked or even latched and as such, it blows freely in the wind. There are currently no animals in the field except a few chickens. It appears to have been tied closed by a nylon strap in the past as a strap remains loosely attached to the gatepost at the opposite end of the gate to its hinges.

At some point since 2010 my neighbour installed a second gate on the ROW close to the opposite end of the ROW from the first gate, as above. That second gate has half a latching mechanism attached to it such that it can be pushed open and closed but not blown open by the wind. It is not locked. Since January 4th. there has been chain hanging around its latching gatepost. As I mentioned my neighbour writes that he has locked all the gates, although clearly this was simply his intention at the time of writing on January 10th.

The ROW was blocked by building materials, garden beds and fencing when I wrote to my neighbour on January 4th.

Incidentally, I notice you post alot in this website. Do you have professional legal experience?

Best wishes, Dorje

Dorje
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Re: Neighbour obstructs Private Right of Way

Post by Dorje » Fri Jan 22, 2016 12:59 pm

Arborlad -

My neighbour owns the land over which the ROW runs, as well as the land either side of it. I have a Right of Way across his land, only. I do not own it. I contend that I can improve it per the terms of the Deed which grants the Right of Way in perpetuity.

MacadamB53
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Re: Neighbour obstructs Private Right of Way

Post by MacadamB53 » Fri Jan 22, 2016 1:38 pm

Hi Dorje,

thanks for clarifying things.

Do you have professional legal experience?

no I don't - just an overly keen amateur.

can you not use the track now? (you mentioned he confirmed he'd cleared it for you as requested.)

Kind regards, Mac

mr sheen
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Re: Neighbour obstructs Private Right of Way

Post by mr sheen » Fri Jan 22, 2016 2:40 pm

You cannot improve the rOW unless there is provision for this in tthe deed but you can can maintain suitable for the use that you have been granted over it.
How you proceed with this will depend upon how important the access is to you. Personally, if I was dependent upon an access, I would set out my position immediately and not tolerate any deviation so that the issue can be clarified right from the start and that ongoing legal dilly dallying doesn't ensue.

I would clarify in writing my side and position, then if he obstructs i would take physical action to actually remove obstructions ( spelt out first to avoid police involvement and able to refer to a surveyors plan if an issue develops)

If it was me, I would get a surveyor out immediately to plot out and measure accurately the extent of the right of way as it stands and as you bought it (assuming the dimensions aren't spelled out in the deed) and get an accurate plan with dimensions.

Then I would send the owner of the land over which the ROW runs a copy of the plan along with clarification of my position....along the lines of


Please find enclosed a detailed plan of the access to my property. As you are aware I have a right to pass and repass with or without vehicles or animals over the full extent of the access, full width and length, as outlined in the enclosed plan. I also have the right to pass and repass at any time without any notice to anyone and in order to fully enjoy my rights, the right of way needs to be kept free from obstructions at all times.

I trust that you will respect my rights and ensure that you do not cause any interference with my right to pass and repass with vehicles at any time. In order to avoid confusion, any obstruction to my ability to pass and repass will be removed. Any gates on the ROW must open easily in order that they do not cause a substantial interference with my right to pass and repass.

You have previously indicated that you intend to make changes to my right of way. Please note that any changes must not interfere with my rights and if they do, they will be removed without further notice.

In situations like these both dominant and servient tenants need to respect each other's rights and I trust that we can both enjoy our rights over the said land with respect to the rights of the other.



But .....your choice, that's just what I would do

arborlad
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Re: Neighbour obstructs Private Right of Way

Post by arborlad » Fri Jan 22, 2016 3:00 pm

Dorje wrote:I have told him that I am engaging solicitors. He claims this is unnecessary and offers mince pies, wine or tea.

The latter would always be preferable to the former - if it can achieve the desired results.
arborlad

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stufe35
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Re: Neighbour obstructs Private Right of Way

Post by stufe35 » Fri Jan 22, 2016 3:02 pm

The fact that the right of way granted appears only to be 2m wide is very limiting. It is really too narrow for cars and has been very short sighted by the previous owner of your property and their solicitor. ..

This fact is not going to help you in any court case- one would tend to expect a vehicular right of way written in the modern day to be at least 3m wide probably 3.6m ideally. He may argue it whilst it mentions vehicles, it was intended for quad bikes for example. In reality you can use any vehicle which will fit.

Your neighbour is perfectly entitled to fence to the edge of the easement, if you cannot get out of the vehicle you have chosen to use this is your problem.-- but if you have to get out because of an obstruction be has created ..this might be different.

The locking of gates in the scenario you describe one would expect to be found to be a substantial interference.eg. how can a delivery driver get to your property ? .but this is not cut and dried and depends on circumstance...as it seems the land is just a field which might work against you ? .

The extra gate erected it is possible might be found to be a substantial interference...it might not.

He is absolutely wrong to interfere with your legal use, you do not have to give prior notice of use at all, he should not park cars on it which block it for example(as you mention)

Approach court action with care...it might be cheaper to reconsider your plans as the right of way written is hopelessly inadequate at 2m wide. Others have indicated the width of a car...how will your cabin be built/delivered ?

On the plus side he appears to have already said and written lots of things that evidence his attempts to frustrate your use and would support any claim you make of substantial interference. Make sure you record them all accurately for future use.
Last edited by stufe35 on Fri Jan 22, 2016 3:25 pm, edited 2 times in total.

MacadamB53
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Re: Neighbour obstructs Private Right of Way

Post by MacadamB53 » Fri Jan 22, 2016 3:14 pm

Hi stufe,

not sure the vendor of the farmer's field who reserved for his own property a right to use this 2m wide 100m long track along the side of the farmer's field in order to access the bottom of the a small field he was retaining ever contemplated having delivery vans use it...

I agree that the servient owner might successfully argue that at 2m wide that would extend to cars as well.

Kind regards, Mac

stufe35
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Re: Neighbour obstructs Private Right of Way

Post by stufe35 » Fri Jan 22, 2016 3:23 pm

Mac,

The vendor had the foresight to write for 'all purposes' which is helpful for the OP.

"
The right to pass and repass with or without vehicles and animals at all times and for all purposes over and along the Access."
I just cannot get over the 2m width for an vehicular easement written in 2010...this is woeful.

Collaborate
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Re: Neighbour obstructs Private Right of Way

Post by Collaborate » Fri Jan 22, 2016 4:23 pm

stufe35 wrote: I just cannot get over the 2m width for an vehicular easement written in 2010...this is woeful.
I agree with that, though there's nothing the OP can do about it.

Buy a segway perhaps?

jonahinoz
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Re: Neighbour obstructs Private Right of Way

Post by jonahinoz » Sat Jan 23, 2016 9:46 am

Hi,

The neighbour bought the land, (at whatever the agreed price) subject to the ROW. If the ROW had not been included, the price may have been higher, or his purchase may have been aborted. He accepted the deal on offer ... too late now to have regrets.

Dorje bought his property knowing that part of it could only be accessed via a ROW ... presumably expecting the servient owner to "play ball".

Both parties are now claiming ownership of the ball. There will be tears before tea-time. If this goes to court, no matter who wins, the lawyers will win too.

To my mind, the ideal solution for both parties (and both parties may disagree) is for Dorje to become the owner of the ROW (which will then cease to be a ROW).

Dorje can then do whatever he likes with the track.

The neighbour can do with whatever he likes with whatever cash 200m2 is worth (probably plus a premium). He cannot currently do what he likes with the track, as it is subject to a ROW. The neighbour will probably ask for a substantial premium in his opening offer .... OK, meet him part way if he adds a further 1 metre, then keep negotiating. It will probably be cheaper than going to court.

I have no idea of Dorje's personal circumstances, nor what proportion of the neighbours land is dedicated to this virtually useless (to him) ROW. Dorje could even grant his neighbour a ROW to move his sheep, by appointment. :D Dorje's property should be worth more, as a ROW will no longer be involved.

John W

Dorje
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Re: Neighbour obstructs Private Right of Way

Post by Dorje » Sun Jan 24, 2016 12:45 am

Should my neighbour sell the land over which he deeded the ROW it will not be to myself.

Having purchased that ROW, sufficient for my needs it seems I must purchase legal services also, to prove my eligibility to that right. If that occurs at his cost due to his regretful signature, so be it. Should his property become devalued by the exercising of those rights he himself granted to my vendor, myself and our successors in title then so be it, also. Does it not beggar belief for him to say, 'Drive over my grass and if you bend it straighten it ... and please pop by for a mince tart afterwards' ?

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