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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9324
Experience:  I have been practising for 30 years.
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Between my property and my neighbours there is a passage way

Customer Question

Between my property and my neighbours there is a passage way approximately 3 yards in width that starts from the pavement at the front of the property to the end of the garden. This piece of land is private and owned 50% by neighbour and 50% by me. At the end of the garden, there is access left and right (a T junction in effect)that allows other residents access to the rear of their gardens. The passage way at the rear is all owned by the other residents (in effect a small section of land beyond the end of their respective gardens. The title plans state that the land has a right of way over the passage way at the side and at the rear. The issue is that at the end of my neighbours garden and my garden there is a section of garden for both that is not developed and vacant. This section measures approximately 2.5metres by 2.5 metres which allows vehicles to turn left and right and negotiate turning into garages. Without this turning a vehicle becomes difficult and potentially impossible. My neighbour is seeking to fence over his section of land and I aggrieved about this. My argument is that whilst the title plans state that there is a right of way over the passage way to the side and the rear, access to the rear passageway becomes restricted if the section of land described earlier is sectioned. My neighbour states that the section of land is his (which is correct) and therefore exempt. This section of land has always been accessible since the property was built in the late 1930's and is shown on the title plan. I too have a section of land which I have not developed and do not intend to as that would prohibit anyone using the passage at the rear without difficulty.
Submitted: 12 months ago.
Category: Law
Expert:  F E Smith replied 12 months ago.

Is it possible that you could attach a sketch showing these rectangles of land so that I can get an idea of the layout please?

Customer: replied 12 months ago.
brief sketch attached
Customer: replied 12 months ago.
He has knocked his garage down and is building a timber outbuilding on the section at the end of his lad, but is not encroaching on his land at the rear which is designated a passage way.
To me it sounds a simple matter that if a passage way exists and access is required as defined in the title plans, then developing a small piece of land as described earlier restricts access to the passageway. I have spoken to my neighbour on three occasions but today he was getting agitated as he started building his timber outbuilding. You may have noted that there is convention where two properties share a drive in that all those properties have a section of their land vacant to enable vehicle access.
Expert:  F E Smith replied 12 months ago.

Thank you.

It is the “Notch”, which the neighbour is seeking to build upon.

You are correct that it is a relatively simple matter that if the passageway existed access is required, then he cannot obstruct that right.

Whether the right is obstructed as a matter of fact and each case is looked at on its facts. For the right-of-way to be obstructed, the obstruction must be “substantial”. There is no definition of substantial. If the access is required for turning, then if he builds on the land and it prevents you doing what you’ve been doing, then the obstruction is substantial.

If he put a wheelie bin on the land it may not be a substantial obstruction but if he parked or built on the land it is likely to be.

You need to register your objection with him now in writing and ask him to stop pending a resolution because if he then carries on, and blocks the right-of-way you need, the court can order him to remove the obstruction if he carried on building regardless.

Even if there is only the right-of-way on foot in the deeds and there is no mention of vehicles, if vehicles have been using this land for over 20 years, then the right-of-way exists by virtue of the Prescription Act which gives the right over and above the right on foot.

The difficulty for you and for him is that these kind of claims are expensive if it gets all the way to court. He may not be allowed to do what he’s doing but if he just ignores your protestations regardless, your only remedy is to go to court.

In respect of that, check your house insurance to see if you have legal expenses cover that would pay for any legal costs. If you do have legal expenses cover, pass this on to the insurer.

Can I clarify anything for you?

Please rate the service positive it’s an important part of the process by which experts get paid. It doesn’t cost you anything but helps me greatly.

Best wishes.

FES

Customer: replied 12 months ago.
I want to be clear as he has just finished putting up his timber outbuilding. The notch as you described has now been built on except for a small triangular bit of approximately 1 square metre (which he believes will be sufficient to allow me to turn). This may be the case, but I have not tested it. However I suspect it may not allow me to use my garage in the manner which I did in the past Is it categoric that the notch of land whilst not classified as a passageway must remain to allow access to the passageway. I do not have legal protection and as the building has been erected I fear I may have to go to court. If I write him another letter is there anything specifically that I can say that may prompt him to reflect on his actions.
Expert:  F E Smith replied 12 months ago.

Thank you.

I would need to see the land registry deeds and title plan to clarify my answer any further. Even with those, sometimes, it’s not possible to give a categoric answer because if there was, there would never be a need to go to court.

However based upon what you have told me, he cannot do what he has done.

He doesn’t actually have to stop you getting out of the garage, he just has to make it more awkward.

The documentary provision is that you have a legal right of way to use this land in accordance with your deeds which includes a reasonable use of that land. If you have extended that use in any way and you and your predecessors have done so for more than 20 years, then the statutory provision is that you have acquired an easement under the provisions of the Prescription Act 1832, and you could apply to court for an injunction and legal costs to make him remove the obstruction.

You might want to also give him notice that it is now awkward to get your vehicle out, and if you damage his structure as a result, you will not be responsible for any costs of putting the damage right unless he removes the obstruction.

Customer: replied 12 months ago.
Thank you please see attached title deeds to his property obtained from land registry
Expert:  F E Smith replied 12 months ago.

Thank You.

This is probably one of the most wishy-washy rights-of-way that I have seen. “The land has the benefit of a right of way over the passageway at the side and rear leading into Mulgrave Rd not included in this title”.

It doesn’t mention what it is or where it is. It’s unlikely that the conveyance of 2 September 1930 will assist because that is likely to be the conveyance of the original plot.

Transfer dated 22 June 1933 may help.

You can get that from the land registry by completing form OC2.

F E Smith and other Law Specialists are ready to help you
Customer: replied 12 months ago.
I understand how clear or otherwise it is. The description on the title plans is as I first described. The issue is over the notch as you described it. There is no contention as to who owns that notch (property owner of*****. My question was: ' is there a right of way over the notch' to allow access to the passage way to the side and the rear where there is a clear right of way. Without this notch access is severely restricted.A hypothetical situation. If unknown to the owner of number***** I had a car garaged and he built his structure which stopped me from getting my vehicle out as under normal circumstances I would have drive on his notch to maneuver out, what would I do in that situation.I would appreciate a response,and in the meantime I have rated your service, Thank You
Customer: replied 11 months ago.
May I have a response please
Expert:  F E Smith replied 11 months ago.

The problem that you have here is the age of the property and establishing what is called causation.

Ie, the cause of the problem.

For you to have a claim in negligence (failure to maintain) you have to prove that is a duty of care (there is) that the duty has been breached (problematical) and that the consequences were reasonably foreseeable) also problematical).

If the drains have not collapsed and are not leaking and there has been no defective work by the utility company in this area, then they cannot be liable.

If the local authority have adopted the alleyway, they may be liable in negligence if you can that they have done something or failed to do something which has led to this happening.

You are therefore going to need some evidence from a structural engineer which says that this has been caused by some problem in the alleyway and that the problem was reasonably foreseeable and could have been prevented with maintenance. Without that evidence any claim against the local authority will fail. This is not going to be an easy claim if the local authority resolutely decide they are going to defend your action. If you do the risk of going to court, you can make a complaint to the Local Government Ombudsman will decide whether this is the local authority’s responsibility or not.

It may be simply that the wall was not built on good foundations 100 years ago and it’s just taken this long to gradually slide in which case, neither the court nor the ombudsman would find in your favour.

Can I clarify anything else for you?

Please rate the service positive. It is an important part of the process by which experts get paid. It does not cost you anything but helps us greatly.

Best wishes.

FES

Expert:  F E Smith replied 11 months ago.

Please ignore the previous post it was for another question. Apologies.

I apologise for the delay in replying. For some reason it didn’t appear in my waiting-list.

Whether a right-of-way exists over the not would come down to the view that a judge took on the issue if ever the matter went to court as to whether the notch was part of the passageway or not. My opinion is that if that area wasn’t meant to have a right-of-way over it, to ease access, then the physical footprint of the properties would just be rectangular.there is no other reason for the notches to be there from what I can see.

The hypothetical situation is interesting. If you had a car in the garage and you stood by and watched the neighbour build his structure, and then took him to court because you couldn’t get the car out, it’s unlikely the court would have much sympathy because you stood by and didn’t help yourself. You would then have to hire a crane or suchlike or make whatever arrangements you could.

If however this all happened without your knowledge (while you were on holiday) then you could apply to court for an injunction to make him remove the structure.

Customer: replied 11 months ago.
I think you have responded to another persons question and not mine
Expert:  F E Smith replied 11 months ago.

I did, but I’ve reposted. Can you not see my latest reply above?

Expert:  F E Smith replied 11 months ago.

Please ignore the previous post it was for another question. Apologies.

I apologise for the delay in replying. For some reason it didn’t appear in my waiting-list.

Whether a right-of-way exists over the not would come down to the view that a judge took on the issue if ever the matter went to court as to whether the notch was part of the passageway or not. My opinion is that if that area wasn’t meant to have a right-of-way over it, to ease access, then the physical footprint of the properties would just be rectangular.there is no other reason for the notches to be there from what I can see.

The hypothetical situation is interesting. If you had a car in the garage and you stood by and watched the neighbour build his structure, and then took him to court because you couldn’t get the car out, it’s unlikely the court would have much sympathy because you stood by and didn’t help yourself. You would then have to hire a crane or suchlike or make whatever arrangements you could.

If however this all happened without your knowledge (while you were on holiday) then you could apply to court for an injunction to make him remove the structure.

Customer: replied 11 months ago.
I understand about the hypothetical situation. If that were to happen of course I would have helped myself. But if I did not know about the erection of the building until it was too late, then I am right in you saying that I would be able to force him to remove the structure.Am I also right is interpreting your comments as follows:That based on the information presented to you vis a vis the notch. That notch would not be shown unless there was good reason for it existing. The notch is not part of the passage way. The notch exists to ease rights of way to enable maneuvering and turning, as without it this action is severely restricted.Am I right is saying that my chances of succeeding with a claim against number 23 are more positive than not.Would his actions to date be interpreted as unhelpful particularly given that I had written to him about the erection of the building before it was built and spoke to him whilst it was in the process of being built, to be largely ignored, save a small concession that he made by redcuing its size by a small rectangular area, primarlily not for my benefit but for another neighbour which in itself is (in my opinion) an acceptance that his actions are questionable
Expert:  F E Smith replied 11 months ago.

Your interpretation is correct on all 4 points.

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