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?
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?
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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.
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.
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?
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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.
I did, but I’ve reposted. Can you not see my latest reply above?
Your interpretation is correct on all 4 points.