Access rights with complications...

StaffordshireBlue
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Re: Access rights with complications...

Post by StaffordshireBlue » Tue Jan 30, 2018 2:12 pm

Hello all

I shall try and respond to all elements in some kind of order!

Yes, Arborlad, we do own the gate and the land the gate is attached to.

I can also confirm the presence of ne'er do wells in my area. We've had to clear up fly-tipping and needles and when a couple of houses were undergoing refurbishment a few years ago the alley-way was used as an access point by burglars. Crime prevention research (http://whatworks.college.police.uk/tool ... ntionID=37) suggests that gates are a Good Thing - but with a few caveats. Currently the gate is solid wood which means that once you're behind it you're actually 'safer' as a burglar because you can't be seen. We're going to replace it with something robust but where you can still observe what's going on behind. We've also installed PIR lighting.

Mac - I agree that in most circumstances a gate is not in keeping with the intention of a RoW and also believe that in an urban environment you have to accept that what might have worked 100-years ago when the RoW was instituted isn't necessarily going to be best practice now. We're trying to balance security and pragmatism with the law.

John W - The path is only 80cm wide and has never, to my knowledge, been considered an access route by the fire brigade.

JDFI - Appreciate your concerns with regards the formal permission. We've always been clear to state in any communications with the B-houses that use of the path is with our permission. Certainly it's something that we'll reiterate when they get the keys.

All - thanks very much for engaging with this post. It's actually made more clear in my mind what it is that bothers me. The simple fact is that I don't mind the B-houses using the path, and I'm not even that bothered if they can prove a prescriptive easement as the RoW exists for the A-houses anyway.

What concerns me is that B4A totally misunderstands the law and, moreover, sees no problem in giving keys to houses that she believes have the right to them (even when they don't) - this is where the impetus in having a copyable-only-by us key came from - all other households are totally fine and respectful! It's a case of having to be overly bureaucratic because of one loose cannon.

Hope I've covered everything and thanks again.

SB

MacadamB53
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Re: Access rights with complications...

Post by MacadamB53 » Tue Jan 30, 2018 3:20 pm

Hi StaffordshireBlue,

The B-houses clubbed together to install the gate... ...around 20 years ago.

this is what I was referring to as them acting unlawfully...

We're in a very dense urban environment and the pathway was gated after attracting drug addicts and fly tipping.

...and then this, read with the first quote, suggests the drug addicts and fly tippers were using the passage 20 years ago.

now you’re saying that the drug addicts and fly tippers have been using the passage much more recently - more than a decade after the locked gate was installed?

as you rightly point out, such gates actually make burglaries easier to perpetrate so it didn’t help there either...

anyhow, your actual issue is how to deal with the owner of B4A - to be clear, though, she isn’t committing a crime or acting unlawfully by supplying folk with keys because anyone with a lawful reason to visit any of the dominant or servient properties will need to have a key under the current set up (they should not be required to ask for one in advance - eg “I’m planning on visiting next Thursday so can someone be in to unlock the gate/get a key to me?”)

your actual issue is that some of the folk whom she is supplying keys to are using the passage to access other properties - the solution is to bar entry from the passage to those properties.

kind regards, Mac

StaffordshireBlue
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Re: Access rights with complications...

Post by StaffordshireBlue » Tue Jan 30, 2018 5:52 pm

Hi Mac

Re: the drug addicts and fly-tippers...

Yes, I can see how that would have been confusing without further context! There was a garage next to the path that the previous owner let it fall into disrepair and it was regularly fly-tipped which we had to deal with. Also, when we cleared it out before demolishing it there was also evidence of drug use.

So what I was really trying to put across was that the claim of drug-addicts and fly-tippers from 20 years ago (prior to the gate... which, incidentally didn't have planning permission either so that was a fun conversation with the Council!) is believable on account of the state of the garage and, for that matter, the way people treat other areas along the same road.
she isn’t committing a crime or acting unlawfully by supplying folk with keys because anyone with a lawful reason to visit any of the dominant or servient properties will need to have a key under the current set up
In terms of B4A, my main issue is that she has (we believe) previously supplied keys to people who cannot use the passage to access their properties as there is no access from the passage to their garden/house (e.g. no gate in the boundary fence).

Perhaps you might be able to clarify something for me? If we allow people to use the RoW, does this automatically confer on them the same rights as if they had the RoW as part of their title deeds, or are we able in this instance to dictate conditions?

Thanks!

SB

arborlad
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Re: Access rights with complications...

Post by arborlad » Wed Jan 31, 2018 9:47 am

StaffordshireBlue wrote: Currently the gate is solid wood which means that once you're behind it you're actually 'safer' as a burglar because you can't be seen. We're going to replace it with something robust but where you can still observe what's going on behind. We've also installed PIR lighting.


SB


As you're intending to upgrade the gate, there are advantages to changing to a numerical keypad for unlocking.
arborlad

smile...it confuses people

MacadamB53
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Re: Access rights with complications...

Post by MacadamB53 » Wed Jan 31, 2018 10:28 am

Hi SB,

If we allow people to use the RoW, does this automatically confer on them the same rights as if they had the RoW as part of their title deeds?

the people don’t have a right, the properties do - they have a right to be accessed by anyone at any time via your land.

you could give specific people conditional permission to access other properties via your land - I recommend this is drawn up in a contract and involves collection of an annual payment as proof that renewal of permission has been sought and given (otherwise a scenario may develop where a RoW could be acquired).

kind regards, Mac

StaffordshireBlue
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Re: Access rights with complications...

Post by StaffordshireBlue » Wed Jan 31, 2018 11:24 am

Hello ArborLad - what do you think the advantages of keypads vs keys are? Not thought about one being better than the other so I'd be interested to know your thinking.
collection of an annual payment as proof that renewal of permission has been sought and given
Interesting idea Mac, I like it. I think it preserves the distinction between property rights and people rights. Thanks.

jonahinoz
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Re: Access rights with complications...

Post by jonahinoz » Thu Feb 01, 2018 4:57 pm

The B-houses clubbed together to install the gate... ...around 20 years ago.

Hi StaffordshireBlue,

Whether planning permission was granted for the gate is now irrelevant. After four years the council cannot order it's removal, and after ten years they cannot prevent you walking through it. :? Or something like that.

As they erected it on your land, it immediately became your gate, I believe there is a Latin term to cover that. Anybody?

Around 20 years ago? That could be important. If an occupier of a house, (Including subsequent occupiers) accesses your path, on just one day of each of 20 consecutive years, the property will gain a prescriptive easement. But the property next door will need to gain it's own easement.

I wonder if the fact that you have given them keys, and they have accepted the keys, would be regarded as evidence that they have accepted your permission to access the lane?

Only the land owner can give permission to access hisr land. If you believe that only legitimate key-holders are accessing lane, are you required to prove that it would be unreasonable for you to need to guard your gate 24/365? They would only have to sneak in once a year, when you were not at home, for 20 years to gain a prescriptive easement. Can the unauthorised use of an illegitimate key be regarded as "force"?

John W

MacadamB53
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Re: Access rights with complications...

Post by MacadamB53 » Thu Feb 01, 2018 5:42 pm

Hi John W,

sneak in once a year, when you were not at home

this would mean they haven’t used the path “as of right” because the above would qualify as with secrecy.

kind regards, Mac

jonahinoz
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Re: Access rights with complications...

Post by jonahinoz » Fri Feb 02, 2018 8:47 am

sneak in once a year, when you were not at home
this would mean they haven’t used the path “as of right” because the above would qualify as with secrecy.


Hi Mac,

Very true.

But if they claimed that they entered openly, in daylight, and can prove it, and it's not their problem that you didn't see them, how could you prove that they only did it "sneakily" five minutes after you had driven away from home? If you always leave for work at 08.00hrs, and they always leave at 08.05hrs, there is a chance they could use your path every working day for a year, and you wouldn't know. Every working day for 20 years might be stretching a bit.

Perhaps a swipe card operated lock, triggered by an identifiable swipe card, that takes a photographic record of who used the swipe card? I think ATMs use something like that. I wonder what they cost?

Hey! You would only have to carry out checks, continuously for 365 days, only once every 19 years, to prevent anyone gaining a prescriptive easement. :D

I'll get my coat.

John W

StaffordshireBlue
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Re: Access rights with complications...

Post by StaffordshireBlue » Fri Feb 02, 2018 12:25 pm

Hi John W
If an occupier of a house, (Including subsequent occupiers) accesses your path, on just one day of each of 20 consecutive years, the property will gain a prescriptive easement.
Presumably it's not enough for the occupiers to just access our path; they have to (in our particular instance) walk from the road, through the gate, down our path and into their property (or vice versa...).

i.e. they can't just open the gate and stand on our land.

SB

StaffordshireBlue
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Re: Access rights with complications...

Post by StaffordshireBlue » Fri Feb 02, 2018 1:58 pm

i.e. they can't just open the gate and stand on our land
I should clarify that the reason I'm asking this is that whilst I don't dispute the amount of time the gate to the road has been there, I am sceptical about how long ago the gates in the boundary fences were installed. i.e. how many years they have been able to go from the road, down the path and into their properties.

MacadamB53
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Re: Access rights with complications...

Post by MacadamB53 » Fri Feb 02, 2018 2:10 pm

StaffordshireBlue wrote:
i.e. they can't just open the gate and stand on our land
I should clarify that the reason I'm asking this is that whilst I don't dispute the amount of time the gate to the road has been there, I am sceptical about how long ago the gates in the boundary fences were installed. i.e. how many years they have been able to go from the road, down the path and into their properties.
they will need to convince HMLR (or a tribunal if you object to their HMLR application) that it is more likely than not that their property has been accessed via your land on a regular basis “as of right” for +20 years.

what makes you sceptical?

kind regards, Mac

StaffordshireBlue
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Re: Access rights with complications...

Post by StaffordshireBlue » Fri Feb 02, 2018 2:37 pm

Hi Mac

There are four properties with gates in their boundary fence and the reasons are similar:

Property 1: B4A told me the previous owners of one house had installed this gate, so this would have have been after 2007 (the year they purchased it).
Property 2: B4A told me that someone she had known for 14 years installed the gate in her boundary fence.
Property 3: B4A also told me that this property installed their gate 'around the same time' (i.e. 14 years ago).
Property 4: This gate was installed two years ago, and we gave permission for them to use the access path. With this one at least we do have conclusive proof of when the gate was installed.

B4A has sent several statements of truth to me: from herself, the freeholder of her property and from a previous owner of one of the other houses. In each, they state that the road gate has been there for 20 years, but not one of them confirms that the gates in the boundary fences of the properties have been there for the same length of time. It's unclear to me if they don't know their law, or if they are being deliberately ambiguous.

Given that B4A also thinks that the top flat above her which cannot be accessed from the path (unless you can fly) has also achieved a prescriptive easement, I suggest it's lack of knowledge of the law... Assuming of course, my understanding is correct!

jonahinoz
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Re: Access rights with complications...

Post by jonahinoz » Fri Feb 02, 2018 5:33 pm

Presumably it's not enough for the occupiers to just access our path; they have to (in our particular instance) walk from the road, through the gate, down our path and into their property (or vice versa...).

Hi Staffordshieblue,

An easement, prescriptive or otherwise, benefits the property, not the occupier. It will remain with the property when a new occupier moves in.

It would be difficult to contrive a benefit to the property, just by entering the gate and standing there. Perhaps if one of the occupiers was "taken short", on his way home, and nipped in for a "quick one" , before continuing his walk to his front door ... but for 20 years? I doubt would give him a prescriptive easement over the whole lane. It might even be illegal, which would scupper the prescriptive claim.

As for the upstairs flat, perhaps the occupier catches the Sunday papers when they are throw up by the paper boy? Or maybe she has been lowering her Cairn Terrier, in a basket on a rope, for it's constitutionals? I've seen that in more than one film.

So maybe possible, but unlikely. I think.

Do all the 14 year old gates look like they were installed at the same time, and by the same person?

Was your property leasehold before you bought it?

John W

StaffordshireBlue
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Re: Access rights with complications...

Post by StaffordshireBlue » Fri Feb 02, 2018 5:59 pm

maybe she has been lowering her Cairn Terrier, in a basket on a rope, for it's constitutionals? I've seen that in more than one film.
John W...you just made my day!

Our property is (and always has been) freehold.

I'm sure the gates were put in by the individual occupiers. Naturally the sticking point is when. I did try and wheedle this out of one company who I know put in one gate... But although the timeline seemed to be in my favour I wasn't able to confirm that there hadn't been a gate there before.

Can you carbon date fencing?!

SB

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