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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I live next to an driveway which provides vehicle access to

Resolved Question:

I live next to an driveway which provides vehicle access to the rear of 4 properties (my own included), where there are two garages and car entry into the back gardens of the other two. Recently an additional property has removed their garden fence on one side and is using the drive to gain vehicular access to the rear of their property, where no such access previously existed. Is this permitted in law? Can and/or should I try to prevent their access either just by asking them or by involving solicitors? I'm particularly worried since we have been getting a lot of damage to our property as works vehicles come down the very tight driveway in order to work on said property. Because no one is usually home when the damage occurs there is no easy way to directly link it to any given builder/contractor or other individual or organisation. As you can imagine, it's causing some frustration on my part.

Many thanks for any insight you can provide,
Mark
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Josh-2010 :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Josh-2010 :

From what you say the driveway in question is private. Is this correct please?

Customer:

Hi, Many thanks for your prompt response. I actually realised that I had missed out some information and was just in the process of editing my question to give some more information. I will post the extra info here:

Customer:

I live at number 40 and am next to an driveway which provides vehicle access to the rear of 4 properties (my own and 42 are on one side of the drive and numbers 38 and 36 are on the other side). At the rear there are two garages (for no's 40 and 42) and car entry into the back gardens of the other two (38 and 36). Recently an additional property (no 34) has had their garden fence removed on one side and is using the drive to gain vehicular access to the rear of their property, where no such access previously existed. Is this permitted in law? Can and/or should I try to prevent their access either just by asking them or by involving solicitors? I'm particularly worried since we have been getting a lot of damage to our property as works vehicles come down the very tight driveway in order to work on said property. This leads on to a related issue. Because no one is usually home when the damage occurs there is no easy way to directly link it to any given builder/contractor or other individual or organisation. Is there anything that I can do to get compensation for the damage (replacing the wall in our front garden), inconveneince and considerable worry (you can imagine what it sounds like inside the house when a van scrapes it's way along or hose) that the repeated damage has caused. I have a medical condition regarding anxiety and nerves, so as you can imagine, it's causing some concern and frustration on my part. Many thanks for any insight you can provide, Mark


PS. You may also need to know that the property in question forms the last property in a row of three. All three were owned by a single individual (call him Mr X) before being sold off to different families. There is some space at the rear of all our properties that is still owned by Mr X. It was originally comprised of the end parts of the gardens belonging to no's 38, 36 and 34 before those properties had their gardens shortened prior to being sold off. The telephone number that I have for Mr X no longer works and I have no other contact details. The driveway is private but is not owned by me. It is owned by Mr X.

Josh-2010 :

thanks.

Josh-2010 :

from what you say, it appears reasonably clear that the neighbour does not have any rights to gain access onto the drive. however, the difficulty here from what you say, is that most you have a legal right of way over the driveway, you do not own it. Accordingly, your ability to restrict access by third parties is limited.

Josh-2010 :

ideally, you will be able to track down the owner of the driveway and seek a transfer of the drive from him to you or you and the other owners of properties that have rights over the driveway. you may consider using a tracing agent to assist you in locating him.

Josh-2010 :

if he cannot be located, you could consider applying to the County Court for a vesting order in respect of the driveway whereby the same is transferred to you and the other owners

Customer:

tracing agent

Josh-2010 :

Yes they are typically used for tracing debtors but can be used for tracking people down. Many offer fixed fees e.g.

Josh-2010 :

http://tracedebtors.com/

Customer:

oops sorry. Hit return by mistake. I am just writing a reply.

Josh-2010 :

No problem...

Josh-2010 :

Is there anything above I can clarify for you?

Josh-2010 :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with though please reply back to me though.

Customer:

Hi again,


Thanks for the extra information on what a "tracing agent" is. It was one of the questions that I was going to ask. In relation to trying to contact Mr X, I'm wondering if there may be any way in which he can be traced via the paper-trail from the properties that he has sold (no's 38, 36 and 34). I've just been looking at http://www.landregistry.gov.uk/ and have found something called "Land On The South-east Side Of, 36, Stanhope Road, St Albans, AL1 5BL", which is probably the land in quesion and as far as I know (from hear-say) is owned by either Mr X or his daughter.


Is there any document / documents that should indicate who has a right-of-access to use the drive? eg. Title deeds of the properties involved.


You suggested seeking a transfer of the drive from Mr X to myself or myself and the other owners of properties that (I believe) have have rights over the driveway. Is that likely to involve me / us purchasing the actual land that the drive is on? Also, what additional benefits would I / we gain from being the owners of the drive?


Could you give me a bit more information on what a "vesting order" is and how to go about obtaining on from a "County Court".


Finally, at the risk of opening up my questions even further, I do wonder what the situation is regarding the land still owned by Mr X (ie. "Land On The South-east Side Of, 36, Stanhope Road, St Albans, AL1 5BL"). Just supposing that he decided to put a fence around his piece of land (but not including the drive itself). This would actually mean that there is insufficient space for anyone to turn their vehicles at the rear end of the drive. ie. it would be possible to drive off the road and go down the drive and then reverse back out, but not possible to turn into any of the garages or rear gardens. So, my question is, would he be allowed to fence off his piece of land if it would have this effect?


Also, I don't think you gave me an answer to this: Because no one is usually home when the damage occurs there is no easy way to directly link it to any given builder/contractor or other individual or organisation. Is there anything that I can do to get compensation for the damage (replacing the wall in our front garden), inconveneince and considerable worry (you can imagine what it sounds like inside the house when a van scrapes it's way along or house and I have a medical condition regarding anxiety and nerves) that the repeated damage has caused.


Many thanks,
Mark

Josh-2010 :

There is a lot to the above. May I revert to you on the same this evening. I have some document I need to get out before 5pm and I do not wish to rush a response. WOuld that be acceptable?

Customer:

Absolutely fine. I'm not in a rush. In fact, in the little questionairre at the beginning of the JuastAnswer session, I selected urgency: low, detail: high :-) So, tomorrow would be fine if you don't get a chance this evening.

Josh-2010 :

Many thanks. I shall revert to you this evening

Customer:

Hi, there's no rush, but I'm chasing this up because I've just received an email saying that you are waiting for me to rate the service that I have received. But I am still awaiting more info from you. Maybe it was just an automated email. If so, no problem.

Josh-2010 :

Sorry I did reply to you last night but for some reason my posts have not posted. I am very sorry. I will repost now.

Josh-2010 :

You can carry out a search of the index map to ascertain the title for the road in question. This will reveal the title under which the road is held (if you do not already know this and any other land in the area you wish to search.

Josh-2010 :

This is the form you need to do this:

Josh-2010 :

www.landregistry.gov.uk/_media/downloads/forms/SIM.pdf‎

Josh-2010 :

The road title will reveal all the registered legal easements individuals have over the road in question.

Josh-2010 :

In terms of obtaining a vesting order you would need to show that you have attempted to track down the owner of the road without success and that you have carried out substantive enquiries - i.e. used a tracing agent - and that the owner is therefore absent and accordingly the road needs to be regularised and accordingly that you apply for it to be vested in you. The court will normally ask to see a valuation of the road from a land agent and if it has value - though roads often do not the court may ask for a sum to be paid on account to the court to be held as security in the event the original owner claims the same in the future. Subject to this the court can order that the title to the road is vested in you and/or the other owners of the houses on the estate.

Josh-2010 :

The owner is allowed to fence of land he owns and over which you do not have a legal right of way. Whether of course he would choose to spend money on fencing off a piece of land which is of limited use to him is another question but legally unless you have a right of way over this area this is a right he has. If you have exercised "turning rights" for more than 20 years you could seek to claim a prescriptive right over the area but this requires 20 years of continuous use.

Josh-2010 :

Re damage you only need to show the damage is being caused on the balance of probability. Heavy trucks usin g the road is likely to be causing damage. Consider photos, a log, CCTV and witness statements as potential sources of evidence. You may wish to deliver a notice to the neighbour putting him on notice regarding the damage though as the road does not belong to you it is difficult to take this further until such time as you manage to gain title to the same as above.

Josh-2010 :

Is there anything above I can clarify for you any further?

Customer:

Many thanks for the information. I think we're coming to a close. Just a few loose ends to close-off.

Customer:

You mentioned: If you have exercised "turning rights" for more than 20 years you could seek to claim a prescriptive right over the area but this requires 20 years of continuous use.

Customer:

Does this have to be more than 20 years of continuous use by a single person (ie. Me) or can it include several people (ie. Myself and the prior owners of my house). I have found a Land Registry document for our house, dated 1975, that states the access rights of the owners. By inference, and because of the layout at the rear of the properties, they would physically have to have used the additional land to turn their vehicle in order to get into their/our garage. Do you think that this is suffiecient to uphold my "turning rights"? Would that require testing in a court of law as-and-when it may become an issue or is there something that I can do to formally secure those rights right now?

Customer:

You mentioned: Re damage you only need to show the damage is being caused on the balance of probability.

Customer:

I now realise that I faled to mention that nos. 42, 38 and 36 are all having extensive building work done (in addition to no. 34) and have had vans and trucks using the drive and coliding and/or scraping with our house and front garden wall. We are an island in a sea of chaos. As such, it's impossible to tell how the responsibility of the damage is proportioned between these four properties and the contactors that have been working for them. Other than a friendly request that they might like to "chip in" to cover the cost of repairs, is there anything in law that may be of use here? Does "balance of probability" still apply?

Customer:

Using the online system at http://www.landregistry.gov.uk/public/property-ownership I have managed to obtain the Title Registry and Title Plan of the land. It does indeed include the land at the rear and the land comprising the driveway. From some additional digging, it appears that the land of the driveway was part of the property of no. 38 until it was recently sold, at which point the driveway was separated from no. 38 and associated with the land at the rear. This is listed in the Land Registry as "land on the south east side of 34-38 Stanhope Road, St Albans, AL1 5BL".

Customer:

Lastly, I have determined that the owners of no. 34 are entitled to foot access down the drive, but not vehicular access. This sounds to me like their contractors in their truck actually had no right of access whatsoever.

Customer:

Here's the text from the Title Registry:

Customer:

The land tinted yellow on the title plan has the benefit of the
following rights granted by a Conveyance thereof and other land dated 9
December 1950 made between (1) Edith Mary Cragg (Vendor) and (2)
Frederick XXXXX XXXXX (Purchaser):-"TOGETHER also with the right for the owner or occupiers of the
premises hereby conveyed to pass and repass on foot only over and along
the passage way coloured blue on the said plan the Purchaser paying a
moiety of the cost of keeping the said passage way in good repair."
NOTE: The land coloured blue referred to is the passageway leading from
the side of the land tinted yellow on the title plan into Stanhope
Road.

Customer:

Hopefully, you can right-click and download the PDF of the Title Registry that I have linked here--->

Attachment: 2013-08-07_142726_land_on_the_south_east_side_of_34-38_stanhope_road_registerplanhd175852_title_register_and_title_plan.pdf

Full Size Image
<---

Josh-2010 :

Re 20 years. The right attaches to land so it is possible that successive owners of one piece of land can stitch together 20 years of continuous use. The burden is upon you to show such evidence though which can be way way of affidavit and documentary evidence as is available.

Josh-2010 :

The application can be made to the Land Registry but you should consider using a solicitor to assist with the application

Josh-2010 :

Re damage in default of an agreement a court can impose a split based on reasonable evidence of extent of user on the part of each owner. It is a judgement call. However until ownership of the road is resolved this is difficult to proceed under other than by agreement between parties.

Josh-2010 :

In deed. The owner of the road can impose an injunction if necessary and sue for damage caused.

Josh-2010 :

I hope the above is helpful?

Customer:

Many thanks. If it wasn't clear, I now have the details of the owner of the drive, which was in Title Registry and Title Plan, listed in the Land Registry as "land on the south east side of 34-38 Stanhope Road, St Albans, AL1 5BL".

Josh-2010 :

A pleasure. I hope you are successful in regularising the position in due course.

Josh-2010 :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with though please reply back to me though.

Customer:

Many thanks for all your useful help. I'm all ready to close this off and leave a rating. Before I do, my wife pointed out to me that we need to know a starting point in order to follow your suggestion to make an application to the Land Registry to claim 20 years of continuous use with respect to "turning rights".

Customer:

PS. It's a bit cheeky of me to ask (so feel free to ignore this), but I've hunted all through my documents that relate to my house, but I can't seem to find any information on who is responsible for maintaining the fence boundaries to the left and right of our garden. Any idea where I should look? I promise that this is the last question.

Josh-2010 :

Re prescription you need to make an application to the Land Registry on form AP1 requesting "Registration of the benefit of an easement, being a right of way with or without vehicles for the benefit of the applicant’s land over the driveway shown coloured brown on the attached plan."

Josh-2010 :

You need to show evidence showing 20 years of continuous use as above. Most people elect to use a solicitor to assist with the registration because the process is a little technical.

Josh-2010 :

RE Boundaries. English law is hopelessly deficient when it comes to responsibility and ownership of boundaries. There is no statutory law and the only way in which obligations are enforced are by way of covenants which easily lapse. The normal position with most second-hand properties, as opposed to new build properties is that unless either party can prove who erected a wall or fence, neither party can lay claim to it as their own unless it is clear that it is built on their land - sometimes this is clear but often it is not - and therefore except where a binding covenant can be shown to exist which is rare in second-hand properties, neither party can enforce the other to maintain a boundary structure or make a claim against the other for damage or removal of the same. If the wall is expressed to be a party structure in your deeds. .

Customer:

Looks like you're part-way through a reply. I just wanted to ask how I might be able to contact you for paid work and/or specifically select you for further questions on JustAnswer?

Josh-2010 :

Unfortunately JA rules prohibit me from accepting private referrals but I am grateful for your consideration. I am very happy to answer further questions you may have however. You can either ask for me in the first line of your question or click on my profile specifically.

Josh-2010 :

I should be very grateful if you would kindly take a moment to rate my service to you today.

Customer:

Thanks for the information regarding referrals and using you in the future on JA. Also, I think you may have cut yourself off in the middle of saying something: If the wall is expressed to be a party structure in your deeds. .

Customer:

Once that sentence/paragraph is completed I will gladly leave feedback.

Josh-2010 :

Sorry this was supposed to read: If the wall is expressed to be a party structure in your deeds and it may belong to both of you and the joint in terms of responsibility...

Josh-2010 :

Many thanks

Customer:

Many thanks for all your work and the information provided. It has been most illuminating.

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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