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JGM
JGM, Solicitor
Category: Law
Satisfied Customers: 10090
Experience:  30 years as a practising solicitor.
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Scotland. We have always had access through our neighbours

Customer Question

Scotland. We have always had access through our neighbours garden, 23 years, and along a lane at the side of her house which belongs to the property that sites alongside her house. The access is used for taking out bins and bringing in materials for our garden. There has never been an issue and over 18 years ago the previous owners of the house next door wanted to put up a conservatory and came to us as they had been told they needed our permission to change the access route through the garden. It was a minor change and we agreed. The neighbour who owns the lane has put up a new garage laid new paths and tried to encrougage on our immediate neighbours land which she blocked. He has now gone to her to say that the lane is his land and he will put up a wall blocking access through the lane and he has checked with the land registry and there is no right of access so tough. He hasn't come near us and I don't know if it's because he hasn't stopped to think that it is our access as well or if he is trying a fast one with the neighbour. He is well aware that we use that access weekly and nothing has been said before. How do we stop him ?
Submitted: 1 year ago.
Category: Law
Expert:  JGM replied 1 year ago.
Thank you for your question. I am a Scots lawyer and will help you with this.
Even if there is no right of access built into the titles for the properties, because the right has been exercised for more than twenty years there is a right of access established by prescription. Prescription means the passage of time and a prescriptive servitude or right of access is established after 20 years continual use without objection or interruption.
To preserve the right and stop him building a wall or otherwise preventing access you will have to consider instructing your solicitor to obtain and interim interdict which is an order of the court stopping him from doing so. Evidence will be needed from witnesses, including you and th neighbour establishing the 20 year's use.
As well as the immediate remedy of the interim interdict you also want to ask the court to make a declarator that the interdict exists. If that is granted you can apply to have that order registered in the Land Register along with your title so that the access will be recorded for the future.
Happy to discuss further.
Please leave a positive response so that I am credited for my time.

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