Right of Way Issue - Garden

guitarguy
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Right of Way Issue - Garden

Post by guitarguy » Wed Jul 11, 2018 10:26 pm

Hi everyone,

My issue is as follows, and I would really appreciate some guidance. I would really like to maintain good relationships with my downstairs neighbours, and the owners of their flat, but I suspect they are misunderstanding their legal position and claiming something to which they have no entitlement.

Brief history:
I bought a first-floor flat two years ago (upper floor on a converted Edwardian semi). There is a balcony out the back, with a staircase descending into the garden, which I own (green on the lease as in the image below):
B8EBDFA9-B280-4B75-BE93-5AD031B95B59.JPG
The downstairs neighbours own the little mini-garden (listed as SOLD on the lease plan). Their right of way is extremely clear, as you can see.

However, they have a gate at the rear of their garden (to the right of the "D" of SOLD on the plan) (rather than at the side (above the "Y" of RIGHT OF WAY), as the deed plan would seem to indicate would make sense) which means that they come out into my garden every day and around to access the right of way. When I purchased, I queried this and they said they had an informal arrangement with the previous owner of my flat. I acknowledged this, and agreed to continue this permission until I could obtain planning permission to replace the balcony staircase, adding a mezzanine to broaden the right of way and improve their access.

I have now received PP for the staircase, and reminded the neighbours of my intention to replace the boundary-crossing rear entrance with the appropraite side entrance (I offered to pay for this myself as a goodwill gesture). This would offer me privacy and security for my garden, and reinforce our boundaries while improving their access to the right of way. However, they are now refusing to do this, and say that they want to continue accessing the ROW through my garden. This would mean that I cannot use a three-foot wide strip of my garden, as they expect me to keep it clear ("in case the tenant (the owner's elderly mother) ever needs to use a wheelchair"). They claim that, although they only bought their flat in 2013, that this gate and this "access" has been in place for many years and therefore they are entitled to continue using it. The path is indeed rather narrow, but is this not something they should have queried before their purchase rather than relying on continuing an informal arrangement? Even if there was a declaration on their seller's form, I don't believe that this has any legal authority. They have not been able to provide any written evidence or easement either for the period they have owned the flat, or from past owners that I am aware of. The previous owner of my flat passed away, so I purchased it from his estate and have no explicit knowledge of the arrangement other than their assertion that they had permission to use the rear gate.

My understanding is that, since it was based on an informal arrangement between two adjoining landowners - and that I explicitly granted them temporary permission to continue using the alternative access while I raised the funds to fix the garden and replace the staircase - that no prescriptive rights could have accrued and that I am within my rights to terminate that arrangement and withdraw permission (particularly I have gone to some expense to improve the condition of and access to the right of way). My conveyancer in 2016 confirmed that the ROW was as outlined in the deeds, and this is identical to the neighbour's lease which they would have received in 2013. All of this, with the exception of explicit mention of the need to resite the access point, was outlined in the planning permission consultation documents which they were sent for approval.

In short, I am now out several thousand pounds for a bespoke mezzanine cast iron staircase for my balcony (I might as well have kept the previous one), and in a position where I am unable to use an (approximately) three foot x ten foot piece of my garden where their (rather large) gate opens outwards into my property.

Can anyone please advise on my rights in this situation? I want to place a rockery in the area where the gate currently opens outwards - I wouldn't be so petty as to put a fence where the gate opens out to deny them access (meaning they would have to remove their fence at the side to access the ROW), but it has been suggested to me I would be within my rights to do so. Happy to provide photos, planning permission blueprint images etc if they are likely to help.

My situation seems to have some points of similarity with that in this thread - https://www.gardenlaw.co.uk/phpBB2/view ... hp?t=18018 - the gist being that "well, this fencing arrangement and gate was here before we moved in so we assume we can continue to use it in perpetuity, regardless of what our respective leases say". Any advice would be very welcome - I am finding this situation rather stressful.I have tried to be reasonable and accomodating (I have resurfaced the ROW at my own expense for their benefit), but it seems that they like the existing arrangement and are refusing to alter it.
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Collaborate
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Re: Right of Way Issue - Garden

Post by Collaborate » Wed Jul 11, 2018 10:39 pm

I think you have it right. AS they acknowledge they had the agreement of your predecessor in title they cannot have acquired prescriptive rights. You simply need to tell them that you are terminating the consent.

guitarguy
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Re: Right of Way Issue - Garden

Post by guitarguy » Wed Jul 11, 2018 10:43 pm

Thank you, Collaborate, for the prompt and helpful reply. I am slightly concerned that this may have been simply a verbal agreement with my predecessor (that is certainly the case with me - I did not see the need to put my own permission in writing). Is the onus on me to prove the previous permission did NOT exist?

IdefixUK
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Re: Right of Way Issue - Garden

Post by IdefixUK » Wed Jul 11, 2018 10:55 pm

You need evidence that permission was given!
You could write to them, and ask them to write back to you, stating if the agreement they had from the previous owner of your leasehold was for them alone or could visitors use the same access. As soon as you have the reply either way you then have evidence that the use was by permission. So that clears the 2013 to date period as far as gaining a presciptive easement is concerned. What happened prior to that you may need to investigate.

MacadamB53
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Re: Right of Way Issue - Garden

Post by MacadamB53 » Wed Jul 11, 2018 11:00 pm

guitarguy wrote:
Wed Jul 11, 2018 10:43 pm
Thank you, Collaborate, for the prompt and helpful reply. I am slightly concerned that this may have been simply a verbal agreement with my predecessor (that is certainly the case with me - I did not see the need to put my own permission in writing). Is the onus on me to prove the previous permission did NOT exist?
no

guitarguy
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Re: Right of Way Issue - Garden

Post by guitarguy » Wed Jul 11, 2018 11:03 pm

Thank you for that - I will certainly give it a shot. Is it possible they can claim for a "retrospective" easement, even if events from 2013 onwards make it clear that the arrangement was informal? From reading other posts on this forum, it would appear that the very existence of the gate would indicate implied permission on the part of the previous leaseholder.

guitarguy
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Re: Right of Way Issue - Garden

Post by guitarguy » Wed Jul 11, 2018 11:03 pm

Thank you - it seems that there is some ambiguity over the necessity for and what would constitute evidence of permission?

MacadamB53
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Re: Right of Way Issue - Garden

Post by MacadamB53 » Thu Jul 12, 2018 12:06 am

guitarguy wrote:
Wed Jul 11, 2018 11:03 pm
Thank you - it seems that there is some ambiguity over the necessity for and what would constitute evidence of permission?
to acquire an easement through long use without force, without secrecy and without permission, there is a specific period of time the use has to have been enjoyed - 20 years or more.

7 years use cannot qualify.

kind regards, Mac

guitarguy
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Re: Right of Way Issue - Garden

Post by guitarguy » Thu Jul 12, 2018 12:11 am

Thanks, Mac. I suspect they may be planning to make some reference to the fact that the previous owners of their flat also used this access (possibly going back to the 90s) so I’m not totally sure of the legal implications of this. As far as I am aware, this would always have been with the permission of my predecessor, who lived in the upstairs flat for some 20 years before passing away.

guitarguy
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Re: Right of Way Issue - Garden

Post by guitarguy » Thu Jul 12, 2018 12:16 am

Please see below the other owners stated objections: (names redacted for privacy purposes). The reference to “detrimental to the right of way” strikes me as essentially meaningless as the ROW is clearly marked on both leases.

QUOTE:
In terms of the gate we are concerned that the entrance will be too narrow. For example, should [the current tenant] need a walking frame, or wheel chair in future we feel it would be too narrow for her to use effectively. Equally it would likely be too narrow to bring a wheelie bin in to the rear garden.

We feel that the rear entrance to the garden is really important and moving the entrance would effectively preclude full usage of the rear entrance. We believe that the current access has been in place since the flats were split and we are concerned that moving it would be detrimental to the right of way.

IdefixUK
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Re: Right of Way Issue - Garden

Post by IdefixUK » Thu Jul 12, 2018 7:03 am

guitarguy wrote:
Thu Jul 12, 2018 12:11 am
Thanks, Mac. I suspect they may be planning to make some reference to the fact that the previous owners of their flat also used this access (possibly going back to the 90s) so I’m not totally sure of the legal implications of this. As far as I am aware, this would always have been with the permission of my predecessor, who lived in the upstairs flat for some 20 years before passing away.
In that case is there any way you can contact the previous tenants/owners and get them to write to you as per my previous suggestion, perhaps someone living nearby knows where they live now.
Regards

arborlad
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Re: Right of Way Issue - Garden

Post by arborlad » Thu Jul 12, 2018 7:30 am

guitarguy wrote:
Wed Jul 11, 2018 10:26 pm
Hi everyone,

However, they have a gate at the rear of their garden ............ Happy to provide photos,



This usually helps the understanding.
arborlad

smile...it confuses people

SwitchRich
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Re: Right of Way Issue - Garden

Post by SwitchRich » Thu Jul 12, 2018 10:18 am

arborlad wrote:
Thu Jul 12, 2018 7:30 am
guitarguy wrote:
Wed Jul 11, 2018 10:26 pm
Hi everyone,

However, they have a gate at the rear of their garden ............ Happy to provide photos,



This usually helps the understanding.
+1

guitarguy
Posts: 25
Joined: Wed Jul 04, 2018 9:38 pm

Re: Right of Way Issue - Garden

Post by guitarguy » Thu Jul 12, 2018 10:23 am

Thank you everyone for your comments so far. I can upload more photos later, but this is the view from my balcony (apologies for the state of the garden - it’s being remodelled which is why this is now becoming an issue). You can see that their gate opens outwards into my garden, and that the fence structure (I don’t know how long it’s been there, but it’s extremely cheap and rickety) actually extends onto part of the right of way at the right hand side (they actually only own the land up to the left edge of the lean-to, the roof of which is pictured). All I really want is to have some firm boundary re-established as per the lease, and the reassurance of knowing that someone will not walk through my garden on a whim. Would an acceptable compromise be to permit them to extend their fence area out into the garden by four inches or so so that the side gate would be the same width as the current rear one? Or do I dig my heels in?
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arborlad
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Re: Right of Way Issue - Garden

Post by arborlad » Thu Jul 12, 2018 10:56 am

guitarguy wrote:
Thu Jul 12, 2018 10:23 am
(I don’t know how long it’s been there,.........


Ah, a picture tells a thousand words :) Had I been looking at something of similar age to the wall, it would raise some doubts.............less than a decade and wont see another one!
arborlad

smile...it confuses people

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