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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9335
Experience:  I have been practising for 30 years.
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I've been in my property years. The purchase from the

Customer Question

I've been in my property for 2 years. The purchase from the previous owner involved transferring part of the overall title he owned. Basically he sold the barn (and curtilage) but retained a wider 6 acres for himself (consisting of farmland and some outbuildings). He does not reside on this land and has rented accommodation elsewhere. The only addressable property is our barn.The barn is situated at the end of a private 100m drive (coming off the main access road), the entrance to which has a set of approx 2m high x 4m wide iron gates. Whilst the gates are ornate in appearance, they are functional.When I purchased the property, the gates where already in place and they where included within my boundary as part of my curtilage. The other side of the gates (land opposite to the private drive inc. the main access road) remains my neighbours land and I have a right in my deeds that allows me to cross his land and onto my drive through the gates.My neighbour also has a right to use this access and my drive as it allows him to get to some of his retained land. The right reads as follows - the private drive is referred to the "Land Access" below:"A right for the Transferors and their successors in title in common with the Transferee and all others authorised at all times and for all purposes with or without vehicles to pass and repass over the Land Access subject to controbuting one half of the costs of the repair and maintenance of the Land Access".In addition to this right there are a set of restrictive covenants to benefit my neightbours retained land. One is pertinent to the private drive, again referred to below as the "Land Access":"Not at any time to obstruct nor permit any obstruction to free passage over and along the Land Access and Road Access nor to park upon or permit the parking of any vehicles, caravans, trailers or boats in or upon the Land Access or the Road Access".Recently I have had the existing gates electrified and a GSM entry system fitted at my own expense. This allows the gates to be opened remotely by calling a number via a mobile phone. If the sysem recognises the calling number from a known, pre-programmed "dial to open" list of mobile phone numbers, the gates will open. If it doesnt, the system keeps the gates magnetically locked together.The system also comes with a small unit fitted directly onto the gates with a call-button on it that is pressed by visitors who wish to gain entry. The system will attempt to call one of several pre-programmed mobile phone numbers in sucession from a "call button" mobile phone number list, until one of them answers. The visitor can then talk throught unit to that person, who can then push "3" on their phone to open the gate.I have added my neighbour's mobile phone number (and the numbers of other parties connected to my neighbour) into the "dial to open" mobile phone number list so he/they too can call the gate and open them at any time upon his/their arrival.I have *not* given my neighbour any instructions on how to program the system or any alternate means to open the gates should the system fail. In the rare event of a power cut for instance there are a set of "fallback" keys that can unlock the magnetic latch and allow you to push the gates open.Also, at this moment in time, I have *not* added my neighbours mobie number into the "call button" mobile phone number list. Therefore it is only I that can open the gates remotely to a visitor currently.My neighbour has now raised the prospect of legal action against me as he believes by fitting the GSM system to the gates I am in breach of the restrictive covenant above.I appreciate that to get a definitive legal position here is impossible - but - by any reasonable understanding the gates in their original un-electrified form constituted a functional barrier to access when I purchased the property. I didn't introduce this obstruction to free passage, it was already there. If anything, the GSM system I fitted (at my expense) has benefitted my neighbour - the area is more secure for both of us whilst retaining the freedom for either of us (and only us) to open the gates, independently of each other.I'm happy to add my neighbours number to the "call button" mobile phone number list, after which he will have equal use of the system to me - except for the "fallback" keys and the capability to program the system.Ultimately, to avoid a costly dispute I would disable the system. But I thought I would try and seek some feedback here first.Have I obstructed free passage and breached the restrictive covenant?
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.
Just because the gates were there before doesn’t mean that if they were closed, they would not be an obstruction. It seems that the system is sufficiently complicated that it would be “an obstruction to free passage”. Translating the right literally “free passage”, this is not free passage. You have also not given the neighbour unrestricted rights to allow whoever he wishes to come and go as he wishes. I guess that would involve him being able to program the system. You also haven’t given him the fallback keys. Even if you do that, whilst this certainly makes for good security and therefore good sense, if the neighbour decides to just be unreasonable and take this to court it could be an expensive and risky exercise for both of you. The outcome would depend on whether any similar cases had already been decided in court and how each sides legal argument was presented. I never gamble but if I was asked to gamble with someone else’s money I think the neighbour would win. I wish I didn’t have to say that but based upon the complexities of the system and that he has limited flexibility with it that’s my opinion. Offering him complete access to the system and the keys and hoping that will appease him is certainly going to be better than disabling it all together if he will accept that.Can I clarify anything for you?Please don’t forget to rate the service positiveBest regardsFES
Customer: replied 1 year ago.
Thanks FES,I agree that providing complete access and keys is the next appropriate step. I didn't withhold these things with any malice so am happy to provide everything.I had come across the following article on a very similar topic - http://blogs.lexisnexis.co.uk/purposebuilt/property-owners-right-to-a-gate-an-open-and-shut-case/.In this case, the court decided that the owners of the gates had a right to close and open them for all purposes connected with the reasonable enjoyment of their property — provided such use did not substantially interfere with the reasonable enjoyment of their neighbour.It identified ‘adequate opening arrangements’ as actually being an electric system that could be operated from within the car or such that the gate could be opened as a car approached it and without the driver having to get out.In a similar way, have I acquired an implied easement in the disposition of the dominant tenement (where once there was common ownership)?Kind regards
Expert:  F E Smith replied 1 year ago.
In my opinion, even though the properties were once in common ownership, there is no implied easement for the gates to be in situ unless this was all in place at the time the properties were divided.In respect of the link you provided the important thing is that it says provided the use did not substantially interfere with the reasonable enjoyment and that is what you need to be decided if ever this went to court, whether that was a substantial interference.If he had unfettered right to access the gates you have more chance of proving that there is not a substantial interference. What happens however if his mobile phone goes flat or is the type of person who doesn’t take it with him all the time or doesn’t use one. Suppose he was disabled and wasn’t able to press the buttons always blind or his visitors were blind. These are all considerations which could potentially get raised in a court hearing. Please don’t forget to rate service positive. Best wishesFES
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Customer: replied 1 year ago.
Thanks FES,To clarify, the gates where all in place at the time the properties where divided. We even asked for the boundary to be extended to explicitly include the gates.As I say - I have no objection to providing the remaining bits and bobs to deliver "unfettered access". On your other points, these would all be true even if the gate system wasn't in place, a disabled or visually impaired person would struggle with these gates. This is kind of my point, the gates were already an obstruction to free passage - if that's understood to be the ability to travel "unhindered".Any reasonable person would have stopped at this large set of iron gates if they where closed and considered if moving forward was appropriate - they're not like stile or waist-height, reasonable care would have to be taken to open them. The gate system improves the situation in my opinion by providing adequate opening arrangements - even more so once he has a set of keys etc.Kind regards
Expert:  F E Smith replied 1 year ago.
If the gates were in place at the time the property was divided then in my opinion, you can claim an implied easement. There is still the operation of the gates which is a potential issue to overcome.I mentioned about the blind and disabled people for your benefit. It would be for him to raise the issue if there is a possibility that such disabled people would visit him on a regular basis. Otherwise, keep quiet about it.If the gates were in place at the time the property was divided and the right of access was created at that time with the gates in place I do not think that he is on good ground to claim there is any obstruction because he was aware of this at the time it was created.