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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.
May I confirm whether you have or had a right of way over the land (path/walkway) in question according to the terms of your lease please?
I am not sure about it. Before the construction began (two years ago) the council informed me about this and I received a party wall notification from their surveyor. They inspected my flat at that time . This is because there was deep excavation on the side of my property. I saw the planning permission from the council and I don't remember seeing this gate in the plan.
Thanks. Presumably the land in question is private as opposed to open to a public right of way?
Yes, previously there was an industrial shed on this site and that was demolished and the flat complex is built. At that time also I had no access
Thanks. On the basis the land is private land, the position will turn on the rights granted to you under the terms of your lease. If you do not have a copy of your lease you can either obtain a copy by contacting the solicitor that acted for when you bought the flat o alternatively you can obtain a copy of a nominal fee from the Land Registry using the following form.
I have copy of the lease
The lease will specify the extent of your flat on the plan and also specify what rights you have in addition to the demise of your flat - e.g. rights over common parts for access etc.
If you can identify that you are granted a right of way in your lease (or that the land is included within your demise on the plan) then you can require that either the gate is removed or you are given a key for access.
Alternatively if you have exercised a right of way in practice for more than 20 years you can claim a legal right through long use under the Prescription Act.
ok, I got to go through the lease and find it. If I have accees, whom I should approach about this? I mean, how should Iproceed - through the council?
The rights should be contained together either in a schedule or set out before the schedules start. They would normally all be found together and may or may not refer to the plan. If you can show that you have a right of way over the area then you can contact the person that put up the gate or holds keys and refer to your right of way and request a key for the same or that the gate is removed as it prevents your exercise of your right of way which is unlawful as provided for in Smith v Gerrard
If necessary you could apply for an injunction to require them to provide a key or remove the gate using form N16A but one would hope that would not be necessary
Is there anything above I can clarify for you?
I don't know who is the managing agent for this property, but I have the landlord's address who owns the property. Whom should I approach?
The landlord is the person with ultimate responsibility but he may refer you to his agent if he uses one. It is quite proper to contact the landlord in the first instance.
Is there anything else I can help you with?
That's all at the moment. Thank you very much for providing me with the necessary information.
A pleasure. If I can assist any further as the situation develops please do no hesitate to let me know.
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