ROW/Shared Driveway Dispute - Advise Needed

ALR
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ROW/Shared Driveway Dispute - Advise Needed

Post by ALR » Tue Feb 20, 2018 10:47 pm

Hi All,

I purchased my end of terrace house in 1999 and it has a shared driveway with my neighbouring property which we both have right of way over

It became apparent shortly after my purchase that my neighbour had previously extended his patio onto the the right of way and it was difficult for me to gain access with my car into the rear garden as i need to mount my neighbours patio to do so

There were dissuasions with the neighbour and it was agreed that i would be allowed to park my car in the shared driveway between the 2 properties until such time that the neighbour removes the area of patio that was encroaching on the right of way

In 2016 the neighbour sold the property and it was purchased by a investor who revamped the house and erected a fence following the line of the patio that was encroaching on the right of way. The addition of the fence now stopped all vehicle access for me into my rear garden
Unfortunately i was unable to meet the new owner but advised his builders of the encroachment to no avail

The neighbours house was again sold at the end of 2017 and the new neighbours do not want me parking in the shared drive way
I have refused to stop parking there and explained my reasons for doing so
They still do not want me parking there but have not removed the area of patio or fence that is blocking the right of way into my rear garden
I have a garage in the garden that i can't get my car to

I have now been served with court papers from my neighbour who is seeking a injunction, requesting that i keep the shared drive/right of way area free from all obstructions

I will be attending court and putting forward my mitigating circumstances

What are the chances of my neighbour being successful in gaining the injunction ?

ukmicky
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Re: ROW/Shared Driveway Dispute - Advise Needed

Post by ukmicky » Wed Feb 21, 2018 1:03 am

You should have acted straight away when you first noticed the obstruction . However provided you did tell the previous owner that you were ok with the patio encroaching onto the right of way you should have an argument that will work in your favour.


Providing you can prove you had access by car to your garage before the patio went up In court you will present a counter argument that your properties right to access your garage over your neighbours land is being interfered with by the patio so you have no choice but to park on the shared area

So your counter argument will be that your neighbour is causing a substantial obstruction preventing your access to your garage leaving you with no option but to temporarily park on the shared access and whilst they were not the owners of the house who built the patio by purchasing the house they have become legally responsible for the obstruction .

The garage should go a long way to prove your property had access through to it but I would also look for some old satellite shots showing the access way before the patio went up.

They only have two augments in regards to the patio obstructing your right of way . Propriety estoppel because you failed to take legal action to remove the obstruction when it first went up and abandonment of your easement rights but the law says provided you did encourage the previous owner to build it and have always objected to it no estoppel can exist and abandonment of an easement requires a very positive action by you that says to the world you and your property no longer wished to benefit rom your easement rights which is an extremely hard thing to prove.

Benn v Hardinge (1992) No abandonment even after 175 years of no use
CDC2020 plc v Ferreira [2005] No abandonment even after many years of non use and after garages were built on the ROW .The garages had to be demolished to reinstate access over the right of way.

Beware unless you both come to an agreement this will not stop after the first hearing and could get expensive..

Hope that is legible as Im typing on my phone
Advice given is not legally qualified and you are advised to gain a professional opinion

Collaborate
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Re: ROW/Shared Driveway Dispute - Advise Needed

Post by Collaborate » Wed Feb 21, 2018 7:58 am

ukmicky wrote:You should have acted straight away when you first noticed the obstruction . However provided you did tell the previous owner that you were ok with the patio encroaching onto the right of way you should have an argument that will work in your favour.


Providing you can prove you had access by car to your garage before the patio went up In court you will present a counter argument that your properties right to access your garage over your neighbours land is being interfered with by the patio so you have no choice but to park on the shared area

So your counter argument will be that your neighbour is causing a substantial obstruction preventing your access to your garage leaving you with no option but to temporarily park on the shared access and whilst they were not the owners of the house who built the patio by purchasing the house they have become legally responsible for the obstruction .

The garage should go a long way to prove your property had access through to it but I would also look for some old satellite shots showing the access way before the patio went up.

They only have two augments in regards to the patio obstructing your right of way . Propriety estoppel because you failed to take legal action to remove the obstruction when it first went up and abandonment of your easement rights but the law says provided you did encourage the previous owner to build it and have always objected to it no estoppel can exist and abandonment of an easement requires a very positive action by you that says to the world you and your property no longer wished to benefit rom your easement rights which is an extremely hard thing to prove.

Benn v Hardinge (1992) No abandonment even after 175 years of no use
CDC2020 plc v Ferreira [2005] No abandonment even after many years of non use and after garages were built on the ROW .The garages had to be demolished to reinstate access over the right of way.

Beware unless you both come to an agreement this will not stop after the first hearing and could get expensive..

Hope that is legible as Im typing on my phone
I suspect a couple of "did"s should have read "didn't" - subject to that I agree with everything ukmicky has posted. You should be asking for a ruling that the fence be removed and the ROW reinstated. May be worthwhile asking the court to declare (for the sake of future relations) than either may block the other's ROW.

arborlad
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Re: ROW/Shared Driveway Dispute - Advise Needed

Post by arborlad » Wed Feb 21, 2018 8:13 am

ALR wrote:Hi All,

What are the chances of my neighbour being successful in gaining the injunction ?


Very high based on what you've told us, but, this could work in your favour, whatever evidence they produce to prevent you parking will be the same evidence that will prevent them from parking.

In your deeds and title plan there should be words describing the easement, with various shadings on the accompanying plan.

Lots of missed opportunities to resolve this, you really should have acted before now.
arborlad

smile...it confuses people

ALR
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Re: ROW/Shared Driveway Dispute - Advise Needed

Post by ALR » Wed Feb 21, 2018 10:56 am

Hi All,

Thanks for your comments

With hindsight i fully agree that i should have resolved this before but as I'm unable to turn the clock back i will just have to deal with it now

Its just frustrating that my neighbour is unwilling to grant me the full unrestricted access he now seeks

arborlad
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Re: ROW/Shared Driveway Dispute - Advise Needed

Post by arborlad » Wed Feb 21, 2018 11:27 am

ALR wrote:Hi All,

I purchased my end of terrace house in 1999 and it has a shared driveway with my neighbouring property which we both have right of way over


Can we see the wording of this please, together with the title plan - both anonymised.



Its just frustrating that my neighbour is unwilling to grant me the full unrestricted access he now seeks


His willingness or otherwise is not relevant here, unless there are circumstances we are unaware of, you already own that right and the fence is a trespass on that right.
arborlad

smile...it confuses people

ALR
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Re: ROW/Shared Driveway Dispute - Advise Needed

Post by ALR » Wed Feb 21, 2018 2:03 pm

Hi arboreal

I will look at the title deed and add the wording later this evening

Thanks in advance for you advice

ALR
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Re: ROW/Shared Driveway Dispute - Advise Needed

Post by ALR » Wed Feb 21, 2018 5:42 pm

Unfortunately as I'm a new member I'm unable to ass a photo of the title plan

wording is as follows

A: Property Register

This register describes the land and estate comprised in the title

1 The Freehold land shown edged with red on the plan of the above property title
filed at the registry and being (property address)

2 The land has the benefit of a right of way over the part of the
passageway tinted in blue on the floor plan for all purposes connected
with the reasonable use and enjoyment of the land in the title (and not
so as to deposit any rubbish goods or things in or obstruct or use the
same in such a way as to become a annoyance to the owners
or occupiers for the time for the time being the adjoining or neighbouring
properties) paying a fair and proper proportion of the expense of
maintaining the passageway in a proper state of repair

arborlad
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Re: ROW/Shared Driveway Dispute - Advise Needed

Post by arborlad » Wed Feb 21, 2018 5:53 pm

ALR wrote:Unfortunately as I'm a new member I'm unable to ass a photo of the title plan


You need three or more posts before you are allowed to post photos, you now have four.
arborlad

smile...it confuses people

ALR
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Re: ROW/Shared Driveway Dispute - Advise Needed

Post by ALR » Wed Feb 21, 2018 10:22 pm

IMG_0686 (1).jpg
You do not have the required permissions to view the files attached to this post.

Collaborate
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Re: ROW/Shared Driveway Dispute - Advise Needed

Post by Collaborate » Wed Feb 21, 2018 11:43 pm

The position of the ROW is very clear. If they've built over it then they're stuffed. Press ahead.

ukmicky
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Re: ROW/Shared Driveway Dispute - Advise Needed

Post by ukmicky » Thu Feb 22, 2018 12:46 am

Yep two little letters can make a world of difference
Advice given is not legally qualified and you are advised to gain a professional opinion

ALR
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Re: ROW/Shared Driveway Dispute - Advise Needed

Post by ALR » Thu Feb 22, 2018 8:46 am

ukmicky wrote:Yep two little letters can make a world of difference
Sorry ukmicky

what do you mean by this??

MacadamB53
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Re: ROW/Shared Driveway Dispute - Advise Needed

Post by MacadamB53 » Thu Feb 22, 2018 3:10 pm

Hi ALR,

can you please share the wording and the plan for your property?

kind regards, Mac

ALR
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Re: ROW/Shared Driveway Dispute - Advise Needed

Post by ALR » Thu Feb 22, 2018 3:54 pm

MacadamB53 wrote:Hi ALR,

can you please share the wording and the plan for your property?

kind regards, Mac
Hi MacadamB53

The wording is the same

1 The Freehold land shown edged with red on the plan of the above property title
filed at the registry and being (property address)

2 The land has the benefit of a right of way over the part of the
passageway tinted in blue on the floor plan for all purposes connected
with the reasonable use and enjoyment of the land in the title (and not
so as to deposit any rubbish goods or things in or obstruct or use the
same in such a way as to become a annoyance to the owners
or occupiers for the time for the time being the adjoining or neighbouring
properties) paying a fair and proper proportion of the expense of
maintaining the passageway in a proper state of repair

The site plan is a mirror image of the one i have uploaded minus the encroachment as our property line and fence respect the right of way area

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