Neighbour obstructs Private Right of Way

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stufe35
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Re: Neighbour obstructs Private Right of Way

Post by stufe35 »

Mac, With your last post you have demonstrated perfectly the arguments which could ensue should a court case go ahead.
The outcome is far from clear cut........except for the fact all the lawyers involved will be much richer and the OP will still have a track only 2m wide and will still have to deal on a daily basis with their awkward neighbour.
COGGY
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Re: Neighbour obstructs Private Right of Way

Post by COGGY »

This thread is unbelievable. Why would anyone buy land knowing of the difficulty accessing it? Presumably the price was set to allow for this problem. It is almost like buying a push bike and then expecting it to go 100 mph.
Dorje
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Re: Neighbour obstructs Private Right of Way

Post by Dorje »

Mac - equally, could one say that the ROW should be widened to prevent users from either trespassing or climbing over their vehicles to open said gate? Secondly, as the neighbour has now fenced up to the ROW, it appears that the only reasonable option available to vehicular ROW users to open the gates is to walk the ROW prior to entering it. So while the Deed permits vehicular use for 'all purposes', it was not well thought out.

The track is not currently passable for vehicles. I believe I have a right to improve it accordingly.

I can access this part of my land by two routes:
i) The ROW - cheaper, unpredictable legal costs aside AND physically easier.
ii) A new road requiring four switchbacks across the 30˚ slope - expensive as it would also require concrete or asphalt over its 300m. required length due to the incline

Arborlad and Coggy - this access is a secondary access. It accesses the upper part of the sloping land, otherwise inaccessible to vehicles.

Clifford - I have a vehicle which I am prepared to use for this purpose.
arborlad
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Re: Neighbour obstructs Private Right of Way

Post by arborlad »

Dorje wrote:[Secondly, as the neighbour has now fenced up to the ROW, it appears that the only reasonable option available to vehicular ROW users to open the gates is to walk the ROW prior to entering it. So while the Deed permits vehicular use for 'all purposes', it was not well thought out. .


Have you considered automated gates with a numerical keypad?
arborlad

smile...it confuses people
stufe35
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Re: Neighbour obstructs Private Right of Way

Post by stufe35 »

Dorje wrote:Mac - equally, could one say that the ROW should be widened to prevent users from either trespassing or climbing over their vehicles to open said gate? .

Dorje, If you read some of the many threads on this forum you will find discussions and disputes over widths of ROWs occur from time to time. Usually the difficulty is that no width is defined in documentation associated with the easement. In these cases a court if asked will rule on the width.. they will look at many things such as the width available at the time the deed was granted, the intention of the deed, possible prescriptive rights gained by long user.

Luckily in your case the width has been very clearly defined as one would expect in a modern easement. There is no argument (to be had) over the width and a court will not change it. Unluckily your predecessor and their solicitor wrote what is in my opinion a totally inadequate width into the deed ... you bought it and you are now stuck with that width- you accepted it when you made the purchase. If you wish to use a vehicle it needs to be of a suitable size to fit that width.....or negotiate to widen the easement with your neighbour (a none starter I suspect).
Dorje
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Re: Neighbour obstructs Private Right of Way

Post by Dorje »

Arborlad - As the neighbour has fenced up to the ROW on both sides (mostly) there is no need for gates across it other than to present an obstruction to both my use of the ROW and goodwill between us. In building those fences, he has built a gate across the ROW 5m. from the end and discontinued the fence alongside the ROW for those last 5m. This obliges users to enter his field and ensure his animals do not escape in the process. So, in summary, he has created a 2x95m. fenced and gated corridor around part of the ROW, leaving a 2x5m. section of the ROW fenced only to his garden, and open to his field. There are gates at the extremes of the ROW and one at 5m. In my view, it would be simpler to fence the entire 2x100m. ROW, remove the gates altogether and drink tea together.
duvet
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Re: Neighbour obstructs Private Right of Way

Post by duvet »

Having read all this. And how caselaw has developed into submission of opinion on how caselaw may be interpretated
the OP has researched and provided caselaw that if given to the landowner will rapidly develop into an expensive courtcase.

but at least they are well prepared and can see that over 2 or 3 days of arguing in court it would be expensive. If going to court is your thing.

Personally. As someone who has land with a ROW over it.... u get annoyed when the users then use the land not included in the ROW. And I can legitimately restrict them to the ROW. You dont get a right to tresspass just because your car doesnt fit. If the ROW was bordered by 2 buildings you couldnt demand one gets knocked down so you can open your door.

If your car doesnt fit - get a smaller car. I believe theres far more recent caselaw that says that too

ps. Its always good when researching you case to research your opponents potential arguments too.
personally id go to the landowner with a bottle of scotch and see how he feels after youve shared it.
Rather than tell him how the law supports your case
scotch costs £40 a bottle. Thats less than the hourly rate of a barrister
Roblewis
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Re: Neighbour obstructs Private Right of Way

Post by Roblewis »

£40 does not even cover the 10 min minimum charging unit for a Barrister :D
pilman
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Re: Neighbour obstructs Private Right of Way

Post by pilman »

In my view, it would be simpler to fence the entire 2x100m. ROW, remove the gates altogether and drink tea together.
That would be the starting point for a discussion. You offer to pay the additional costs to fence off the remaining area of land so that there is then an ungated access track that is 2 metres wide and 100 metres in length that leads directly to the land you own.

You could try and point out to the neighbour that the inability to get out of a vehicle when it is on the existing track is going to be a substantial obstruction to using the right of way if any gates are erected, which is why you need to discuss the fact that neither of you wants to have to have the matter settled in court.
stufe35
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Re: Neighbour obstructs Private Right of Way

Post by stufe35 »

I think there is also case law that you are under no obligation to shut gates behind you. (can anyone confirm this ?) I’ve often thought this very strange, but I’m beginning to see that perhaps this is English law indicating that free range animals and private rights of way are ideally not mixed and should be kept separate. The law supports this by keeping the owner with overall responsibility for the animal. You could remind your neighbour gently of the advantages of not risking his livestock getting free through a gate left open by having the full fence as pilman mentions.

He is clearly after frustrating your use; perhaps you can turn the situation around a bit. Ask him what exactly his concerns over the use of the ROW are. Where you can offer him responses that reduce his concerns, otherwise remind him gently of your legal rights which he cannot dispute.

Is the route currently a field which you propose to hardcore or concrete ?
duvet
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Re: Neighbour obstructs Private Right of Way

Post by duvet »

stufe35 wrote:I think there is also case law that you are under no obligation to shut gates behind you. (can anyone confirm this ?)
and leaving gates open letting someones livelihood escape is going to help the situation how?
stufe35
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Re: Neighbour obstructs Private Right of Way

Post by stufe35 »

I didn't say let animals free, I suggested pointing out the added advantage / reduced risk of a fully fenced ROW to the neighbour as part of any negotiations if needed.
andrew54
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Re: Neighbour obstructs Private Right of Way

Post by andrew54 »

There is mention of 'a standard car' in this thread, and suggestions that a car cannot pass along a 2m wide track. I suggest that there is no such thing as a 'standard'. And there seems no shortage of motor vehicles that could be used - any motorbike - any small car from the 1950's - any Land Rover - a modern Kia Picanto - a current Suzuki Jimny - and many more. Agreed there are plenty of vehicles that would not pass, but it is specified at 2m seems reasonable to me.
mr sheen
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Re: Neighbour obstructs Private Right of Way

Post by mr sheen »

So the deed provides for a right of way of 2m wide so this you are stuck with, no amount of logical justification of the need for wider access will get you anywhere. Your only option for widening is cash, and getting it legally with the full consent of the land owner.
The landowner has the right to put gates in but they should not cause a 'substantial interference' to your use at any time and without informing anyone which is your right. The case law on gates is mixed and each case will be considered on its merits.

It is very premature to be considering court because the terms of this deed are pretty clear and you bought the land in full knowledge of the restrictions relating to the width of the right of way. You have no choice but to accept the 2m width so the only discussion issue is the gates. If he gives you a key you would have to get out of the car and open the gate and this would probably be seen as unacceptable where the width is only 2m, so automatic opening gates may be an option or agree a compromise on fewer gates.

Once warned that obstructions on rights of way will be removed, action can then be taken. I would tell them they will be removed and then remove them since this then moves the burden of proof to the servient tenant to prove he has the right to have the gates. However if the OP takes any action to widen the right of way he will get zero sympathy from any court since such actions are clearly in the wrong, he is fully aware of the restricted width and bought the property with the restriction only a short time ago.

So suggesting that the OP will win in court (mainly by OP!) and get the neighbour to pay costs is delusional. The likely outcome is reiteration of width restricted to 2m only, use of right of way can occur 24/7 without any notice to anyone, some compromise in relation to gates to meet needs of both tenants......and hence each would probably have to pay their own costs or if OP has tried to widen it....he may be penalised with all costs!
Dorje
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Re: Neighbour obstructs Private Right of Way

Post by Dorje »

mrsheen Clearly, to widen the ROW or remove gates without permission from my new neighbour (or the Court) would be illegal here. As for getting out of a four wheeled vehicle to open a gate without climbing over the vehicle or walking the length of the ROW prior to entering the fenced ROW, in this case that's impossible due to the fences. Secondly, if my neighbour fenced the entire ROW the issue of gates would be moot (since the gate between our two properties currently swings in the wind) and his animals would be prevented from escaping when users of the ROW inadvertently allowed them to do so by operating his gates.

The main issue here is that my neighbour holds that I must not 'improve' the ROW so that a vehicle can pass over it as the Deed permits.
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