ROW/Shared Driveway Dispute - Advise Needed

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Re: ROW/Shared Driveway Dispute - Advise Needed

Post by pilman » Thu Feb 22, 2018 6:19 pm

If you intend to represent yourself in a court action brought by the neighbour you should be aware of this legal authority.

ER Ives Investment Ltd v High [1967] 2 QB 379

Two neighbouring plots of land were bought by separate people and one had a block of flats built where the foundations encroached about one foot over the boundary.

The neighbour agreed not to have this removed as long as he was able to have a right of way over the land behind the flats to allow him to park on his own land.

When the block of flats was sold for the first time it was made clear to the new owner that Mr. High had this unrecorded right of way.

When the block of flats was sold a second time the new owners were told about the right of way to Mr. High's garage that had been built on his own land, but they attempted to stop access claiming it was not registered as an easement.

This was a case where what was an equitable easement could not be obstructed.
What you have is a legal easement, although you can also confirm that there was a verbal agreement that you be allowed to park on the shared drive because the patio was built that stopped access to the original garage space in the rear garden.

You can counterclaim to have the fence and patio removed because it is a substantial obstruction of a legally granted right of way, or you could claim that the alternative of parking on the shared drive is acceptable to you because that is an equitable easement you are prepared to accept in return for leaving the fence and patio undisturbed.

You will need to give testimony about how you reached a verbal agreement with the first neighbour after you moved into your house. How you told the fence erectors that you objected and any other facts that will support your right to remain parking on the drive, or to have the judge order that the fence and patio be removed and your legal right of way reinstated.

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Re: ROW/Shared Driveway Dispute - Advise Needed

Post by ALR » Fri Feb 23, 2018 9:29 pm

Hi Pilman

Thank you everyone for your advice and support

Im seeing a solicitor this week as court proceeding scare the life out of me

Regardless of what was agreed in the past with my old neighbour i respect my new neighbour right to not have my vehicle obstructing the shared drive way and his right of way.
Unfortunately he want it all his own way and is not prepared to afforded me the same as he has not removed the obstruction his patio and fence present to my right of way to my garage

At the end of the day ultimatly we both want the same thing

My gut feeling is i can represent myself but as I've no court experience i don't want this to go against me
I don't know how the court will view this case as i am obstructing his right of way but this is only because i can no longer get to my garage
I'm hoping that comment sense will prevail and they dismiss his application for injunction until such time that he removes his patio and fence from my right of way and I'm then still continue to block his right of way
Im unsure if i can deal with my neighbours obstruction under this claim or will i need to issue my own claim to deal with this?
If i take legal representation and he's unable to obtain the injunction, can i claim costs?

I'll update the board after I've seen a solicitor

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Re: ROW/Shared Driveway Dispute - Advise Needed

Post by pilman » Sat Feb 24, 2018 11:44 am

An application for an injunction is just the first part of court proceedings that will need a full hearing when both parties provide the evidence in support of and against the application for an injunction.

The fact that you have a legal right of way shown on your deeds and the fact that there is a patio and fence erected on the neighbour's land that prevents access to your garage will have to be taken into consideration by the judge at the first hearing.

It appears to me, as a personal point of view, that once that fact was established it would be unlikely that the judge would grant an immediate injunction to prevent you parking on the drive.

That is why a full hearing will be needed so that all evidence is presented.

Also as a personal point of view I fail to understand how anyone can make this statement when a valuable property right has been interfered with although the rights of way over a shared drive will be recorded on both registers of title.
I respect my new neighbour right to not have my vehicle obstructing the shared drive way and his right of way.
That quote should be ended "even though he is currently obstructing the shared right of way and my right of way"
That's not respect that is capitulation.

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