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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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We own an end of terrace cottage (one of three) we bought it

Resolved Question:

We own an end of terrace cottage (one of three) we bought it knowing that our two neibours have the right to drive down the drive at the side of our property ( the drive covers our drains and septic tank) to access the back of their cottages. They can access their houses via the front door, but both have a small parking area at the back.

This has worked well in. The 6years we have lived here but one neighbour has decided to rent out their property and the new tenant has been here to view has announced that he can use a small enclosed area to store the wood that he sells, he also has a Staffordshire bull terrier that I am concerned he will allow to roam in the parking area, both my other neighbour and I have cats and I can foresee problems. Does the access rights apply to tenants and to vehicles that may wish to access the area to buy wood?
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

Do you have the wording of the right of way you refer to in your title deeds to hand by any chance that you could either copy and paste or type out for me?

Customer: Hi
Customer: Our deeds are very old documents the cottages were built in 1750 and under the charges register in our documents it says
Customer: subject to the rights of the owners of the two adjoining properties on the north thereof to pass and repast for all times and for all purposes with or without motor cars or other vehicles over and Long the road way coloured brown on the said plan on paying a proportion part of keeping the same in repair and subject to to the right of the owners of the said adjoining properties of the passage and running of water and soil to the drains constructed within twenty one years of the 22 day of. March 1972. This is all in our land registry certificate
Customer: We have had the drive repaired an. Number of occasions and although our neibours next door has shared the cost of gravel ect the neibours who is renting hasnot
Joshua :

Perfect - many thanks. You mention that the tenant proposes to use an area to sell wood. Is this are within his boundary or is it on any part of the land coloured brown or your land generally?

Customer: It is within his boundary but to reach it and to park to load the wood he would half to be on our land
Joshua :

Thanks. There are two aspects to this. The starting point is that the neighbouring properties both appear to have a right of way over the drive for all purposes connected with their properties. This would include all residential purposes and those ancillary thereto. It would not extend to commercial purposes and there is no right to allow a right of way for commercial activities at the properties.

The neighbours have no right to park or store anything on any part of the right of way or your land generally. Their rights extend merely to passing over the drive with or without cars for the purpose of accessing their properties. Accordingly he cannot stop on the land to load and unload or for any other reason for that matter.

Finally there is a legal maxim that runs that "you cannot take the benefit without the burden". In this context the right of way is expressed to be subject to an obligation to contribute towards maintenance. Accordingly the neighbouring owner cannot exercise a right of way without also paying his fair share of maintenance costs. If he refuses to do so then he cannot exercise his right of way. For clarity it is the owner rather than the tenant that bears the maintenance obligations to you but it follows that if the owner cannot exercise his right of way then any tenant or visitor cannot either. You will need to be able to show that you have formally demanded a contribution by raising an invoice or demand in order to claim he has not paid his fair share.

Joshua :

If you can identify any breaches of obligations or over reaching of rights on the part of the neighbour and/or his tenant then you can ultimately contemplate an injunction to prevent the continued use of the right of way in a way in this way.

Customer: Thank you this is very helpful, does he have the right to allow his dog to wander in the courtyard?
Joshua :

If you are forced to do this ultimately you can use form N16A to make the application:

Joshua :

http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=402

Joshua :

No based on what you kindly posted above, he has no rights of amenity over your drive, merely a right to pass over the property for the purpose of access to his property. A wondering dog can also constitute a separate ground of statutory nuisance and may be something that the councils Environmental Services department can assist you with by serving an abatement notice or alternaitvely is another head of complaint you could add to an injunction application if necessary.

Joshua :

Is there anything above I can clarify for you?

Customer: No thank you this has been most helpful,
Joshua :

A pleasure. I hope you are able to achieve an amicable resolution without the need to turn to the county court.

Joshua :

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 please reply back to me though.

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