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Aston Lawyer
Aston Lawyer, Solicitor
Category: Law
Satisfied Customers: 10458
Experience:  Solicitor LLB (Hons) 23 years of experience in Conveyancing and Property Law
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Our neighbour has a right of way along won't house to enter

Resolved Question:

Our neighbour has a right of way along laid won't house to enter his garden. This right was put into the land registry in 1975. He has now put planning into the council to build an extension to the house
Now he is not entering the garden as stated in the document now he enters the house.
Can I refuse the right of way or even get rid of it?
Submitted: 12 months ago.
Category: Law
Expert:  Aston Lawyer replied 12 months ago.

Hi,

Are you asking if you can refuse him use of the right of way on the basis that he has not used it for many years?

Kind Regards

Al

Customer: replied 12 months ago.
It hasn't been used for many years by the old owners.
I won't to get rid of the right of way if possible as it clearly says in the land registered documents,
That it is for the purpose to go by foot to the garden.
The new owner wants to extend the house into the garden. The right of way stops a couple of
Yards after his house corner. Now he is planning a door into the house.
In my opinion that is not entering the garden.
The minimum I think I can refuse him using my property to enter his house, it is not the garden
And at the time I think it was for the people to enter the garden with an animal instead through the house.
Expert:  Aston Lawyer replied 12 months ago.

Hi,

Thanks for your reply.

To answer you fully, I do need to see the wording to the right of way. Could you please let me have the wording?

Thanks

Al

Customer: replied 12 months ago.
Hi Aston, I will ask my wife to forward me the exact wording tonight, unfortunately am I travelling
And only got an I Pad, no files.
From Memorie it says: the neighbours are allowed by day and night to use the path to enter their garden
On foot with animals.
Expert:  Aston Lawyer replied 12 months ago.

Hi Henry,

Thanks.

I will await to hear from you further.

Kind Regards

Al

Customer: replied 12 months ago.
Al
Can you please send me you e mail so I can forward the PDFThanks
Expert:  Aston Lawyer replied 12 months ago.

Hi, you can send it to***@******.***

Kind Regards

Al

Expert:  Aston Lawyer replied 12 months ago.

Hi Heinrich,

Thanks for forwarding the Deed to my email.

Please give me time to go through it, and I will then reply to your enquiry.

Kind Regards

Al

Expert:  Aston Lawyer replied 12 months ago.

Hi Heinrich,

I have now studied the Deed.

I note (first page of the Deed) that the right of way grants the owner of the Coach House a right of way on foot with or without animals for the purpose of gaining access to the garden. It then further states that this right of way is for "all purposes connected with the use occupation and enjoyment of the property as a private dwellinghouse". As the grant of the right of way is "FOR ALL PURPOSES CONNECTED WITH THE USE OF THE PROPERTY" then I'm afraid to say that just because an extension has been built on what used to be part of the garden does not prevent the neighbour from continuing with their use of the right of way. I agree that the wording stipulates "for the purpose of gaining access to the garden" but this wording was to show the physical dimensions of where the right of way was running, as opposed to the PURPOSE for which the right of way was granted. Any right of way attaches to a Property, and the further wording stating that this Right is for "all purposes connected with the use of the property" does mean that the neighbour's right of way can be used for any purpose, provided it is to gain access to and from the Coach House.

As regards ***** ***** of way not having been used in recent times, I am afraid that the non use of a right of way is no legal basis to say that the right of way has been "surrendered".From a legal point of view, it is almost impossible to prove that someone has given up their right to use a right of way, unless that person has done some physical act to prevent the right of way being used and even then, the Courts have decided that the right of way could be "resurrected" if that party then removes the physical barrier preventing them from using the right of way. There has also been a Court case which decided that despite a right of way not being exercised for over 100 years, did not mean that the right of way had been surrendered.

Therefore, I am sorry to say that your neighbour does continue to have a right to use the right of way, and the fact that he will be using it to gain entrance to an extension, as opposed to the garden, does not make any difference, as they are still using it for the purpose of gaining access to the property and hence it is for the "use of their property".

I am sorry this s not the answer you were looking for.

However, if I have answered your question, I would be grateful if you could rate my answer.

Kind Regards

Al

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