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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9032
Experience:  I have been practising for 30 years.
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We have shared access with the neighboring property and the

Resolved Question:

We have shared access with the neighboring property and the gate is an issue with letting our children out in the garden, plus the overall opening and closing battle.
The effort to purchase the land in front of our property from the council failed, which would of created a new entrance.
The blue hatched area indicates the shared access area but it states it is within our boundary and we have to provide vehicle / foot access.
Also to add into the mix is the neighboring property is rented out.
Some clarity on the following would be appreciated.
· Is it possible to erect an extended fence (shown red) and new gate (green) within the blue hatched area as long as neighboring access is retained.
· Do we own the blue hatched area and legally have to give access or will the deeds to the neighboring property have similar wording.
· If we erect the new fence and gate can we decide whether a gate is replaced or not in the original position, we would like to remove it so there is not two gates.
· Can we decide on the boundary for the new fence / gate as long as vehicle access is ensured for the neighboring property.
· If we decide on retaining the current layout can we change the gate style without notice as owner of the boundary.
Before we take this to a solicitor a further understanding would be beneficial.
Let just say we have just had discussions with the owner and it did not go well.
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.
Can you reattach the plan please? It did not come through.What exactly is the issue with the gate?Can you accept blame the problems that you’re trying to overcome, in detail please?Thanks.Best wishesFES
Customer: replied 1 year ago.
We would like to know who overall owns the blue hatched area, the boundary line indicates it is us. If this is the case then can we do as we wish in terms of installing a new fence and gate to secure our property, not replace the gate in the original position as long as we provide the neighbor permanent access by vehicle or foot.If we provide a letter to the neighbor and wait 30 days can we just proceed.ThanksScott
Expert:  F E Smith replied 1 year ago.
If the Land registry title document says that you own the area edged in red, then you are entitled to do what you like with it provided you do not obstruct any right-of-way that the neighbour has.The blue triangular area on the coloured plan appears to be different from the blue hatched area on the Office Copy.It is very difficult to read the written attachment but it appears to imply that the neighbour has the right to go over the whole of the area marked in blue on the Office Copy whereas you appear to be proposing limited access.I think what you are saying at the moment is that the neighbour does not close the gate where you have put Remove Existing Gate on the coloured plan and you are proposing an extra boundary fence which is green and a couple of new gates which are red. Is my understanding correct?If that is the case, the only anomaly seems to be over the extent of the blue land which is different in the two images
Customer: replied 1 year ago.
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Customer: replied 1 year ago.
Thanks, ***** ***** in the blue area shows the before and after result when the new boundary is in place, although there is no need for a my neighbour to cross the old blue area behind the new boundary.The neighbour in the rented property does not close the gate, so I propose to remove the gate and put the new boundty in place.Thanks
Scott
Customer: replied 1 year ago.
Dear Mr Smith,Thanks for your service.I guess it comes down to the following question:Can I erect a new boundary within the blue area while retaining the access rights of the neighbouring property. They could if needed cross the new boundary and have shared rights within the existing blue area?ThanksScott
Expert:  F E Smith replied 1 year ago.
It seems unlikely that if the people are renting the house they are going to bother with any litigation but they may make a complaint to the landlord. The people are renting the house may not actually know the extent of the right-of-way but they could get the deeds from the land registry for £6.The test of whether a right-of-way is obstructed and interfered with is whether the obstruction is substantial. At present, they have the right to go over the whole area and even if you put gates in place it could well be a substantial obstruction if they don’t have enough room to easily get in and out of their property.Whether something is a substantial obstruction or not is a matter of the facts on each case. Parking a motorcycle on a very wide drive is unlikely to be a substantial obstruction. If the drive is however 2 m wide it would be.I think this could be potentially problematical for you not from the tenants point of view but from their landlord’s point of view if the landlord raises it as an issue.I would suggest that before going ahead, you discuss the matter with the landlord and tell him what you propose. If you don’t, you do risk a court application by the neighbour if he is minded to risk spending money on the litigation.Can I clarify anything else for you?Best wishesFES
Customer: replied 1 year ago.
"If the Land registry title document says that you own the area edged in red, then you are entitled to do what you like with it provided you do not obstruct any right-of-way that the neighbour has."One last clarification based on the above, if the new boundary line has no effect on how access is currently provided and used by the tenant and landlord can we erect the fence but declare that they can still access the blue area at anytime.It is the landlord that we are in discussions with, there is no need for the neighboring property to be on the land that will be fenced of. If the landlord says this can not be done is this final?With reference to the drawings the only purpose of the land that will become fenced off is access to my property.ThanksScott
Expert:  F E Smith replied 1 year ago.
If the new boundary line has little effect (you say no effect- but I emphasise little effect because it does have some effect) it is more likely that if the owner of the next-door property took issue with this, any action he brings is likely to fail.The fact remains that he is entitled to go over the whole of the area in blue and you are not allowed to substantially obstruct that area and by putting the fence and the additional gates in, you are doing that.If it came down to an argument, it would be for the judge to decide whether the neighbour could reasonably expect to continue to use the area which you fenced off. It is true that it is not absolutely necessary but the fact remains in the deeds, even though it’s not necessary, he has access over that land and you are fencing it off and putting gates in the way.It is not a case therefore that if the landlord says that cannot be done it’s final. It’s only final in that is the only way to guarantee you will not be on the end of litigation. It would depend what view the judge took if it got to court if the neighbour decides to take issue with it. Provided it does not obstruct the access at all it’s highly likely that he isn’t going to be bothered with risking the money on what is probably going to end up as no more than a point of principle.Litigation never has a guarantee.
Customer: replied 1 year ago.
One last question
If we decide to instal the gate at the start of the blue hatched area (house side) can we remove the current gate and declare it can not be put back?Thanks
Expert:  F E Smith replied 1 year ago.
If they only have access over your land you are at liberty to remove the gate and they are not at liberty to replace it. Please don’t forget to rate the service positive. It is an important part of the process which recognizes my input.Thank you Best wishes FES
F E Smith, Advocate
Category: Law
Satisfied Customers: 9032
Experience: I have been practising for 30 years.
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