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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8987
Experience:  I have been practising for 30 years.
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I own half of a layby adjacent to my neighbour's property. I

Customer Question

I own half of a layby adjacent to my neighbour's property. I also have right of access to the path immediately adjoing this layby, passing through my neighbour's garden to the gate to my house. This right of access is specified in our Deeds. The neighbour owns the other half of the layby. He does not drive and has surrounded his half of the layby with metal bollards. These bollards also surround the shared access path. Yesterday he attached a plastic chain between all of the bollards, effectively fencing in both his half of the layby and the shared path. Where I used to be able to walk from the part of the layby that I own straight onto the shared path, either to access my car or to place rubbish in my bins, I now have to walk out into the road and the whole way round my car, or climb over the plastic chain. My partner is currently walking with a stick and is unable to climb over the chain link fence. We have always been reasonable with our neighbour's often unreasonable requests, but the relationship has broken down and we are unable to communicate with him. He is a University Law Lecturer and will not even write us a note without writing 'without prejudice' at the top ! My question is whether his chainlink fence constitutes a deliberate obstruction and whether our right of access across his land has been compromised by the obstruction between the part of the layby that WE own and the shared access path. I am sure his response will be that the fence is on HIS land, but given that the boundaries on the deeds are marked in thick red pen it is not entirely clear where that line is. Essentially, we used to be able to walk from our parking space to the shared path. We now cannot. Is he able to do this ? Thank you.
Submitted: 5 months ago.
Category: Law
Expert:  F E Smith replied 5 months ago.

Just because he lectures on law does not necessarily mean that he knows anything about the day-to-day application. Don’t be intimidated by that.

I need some more information from you please.

You on half the layby and the neighbour owns the other half of the layby.

What access do you have over his half of the layby and vice versa and over the path? Is that documented in the deeds or is that just through long use?

Have his actions prevented you having free access over part of his property over which you have documented or pre-existing excess?

Is there some history between you and the neighbour that has prompted this?

Incidentally, the only reason for writing Without Prejudice on a letter (it should actually be Without Prejudice Save as to Costs) is of the letter contains anything resembling an offer or an admission. It is simply not required in other circumstances.

Customer: replied 5 months ago.
It is rather difficult to explain without a picture, but I will try ! You may be able to google street scene EX5 5EL 2 Cowley Barton Cottages. Imagine you are facing a layby with your back to the road. The layby boundary is the road to the front, and a retaining wall (owned by the neighbour) to the back. There is a gap in the retaining wall with some steps up to his garden and a path. This path goes to HIS front door, and beyond to a gate in the fence to OUR property. There is a right of way specified in the deeds for the owner of No 2 (us) to pass and repass for the purposes of the enjoyment of said property. We (and our good friend before us) have through long use always walked from the part of the layby owned by us, directly to the steps. The chain he has put up now effectively fences in our layby so that we can only get to the shared path by accessing it from the road. We can no longer walk directly from our part of the layby to be able to get to the steps without having to go out into the road and 'start' the shared path from the place where he has put a gap in the chain. Do you have a method by which I can send you a picture of this. To put into more context, no.2 was owned by a very dear friend for several decades. When she became terminally ill we became her carers and she left us the house in her will. In her will (which we are sure our neighbour has read due to things he has said) she specified that under no circumstances was the house ever to be sold to Peter Tyldersley or his agents. She warned us that he was very mean and a 'passive-aggressive' bully.
Customer: replied 5 months ago.
He has replaced all of our shared fences with huge new fences which he has put up and taken down repeatedly (sending several companies bankrupt in the process). At one point he decided that our boundary fence had leaned over time (like, 20 years previously) and that having measured inside his house he decided the fence posts were in the wrong place and subsequently the concrete plinth outside our front door was on his land. When he put his new fence in he cut an eight inch chunk out of our concrete plinth to move the fence back to what he perceived was the correct boundary. We did not dispute this as we were trying to be neighbourly. He has had a brain injury in the past so we have always tried to be understanding, but this is really getting us down. I really want to be able to write him a letter explaining that we always had free access from our layby to the shared path and that the boundary he has put up (and the expectation that we will have to walk onto the road to access the shared path from the end, rather than part way through it) is unreasonable.
Customer: replied 5 months ago.
Picture added.
Customer: replied 5 months ago.
Do you need any further information or are you able to help me with details of suggested wording ?
Expert:  F E Smith replied 5 months ago.

You can always attach pictures or sketches/plans if you are able to scan them. There is a paperclip attachment facility on the reply box.

I have “driven” all the way up Cowley Road from the pub to the lake and I can’t see exactly where the layby is that you’re talking about.

In the interim, if he is constantly “at you” over this that the other, he is clearly harassing you and you are entitled to protection from harassment under the Protection from Harassment Act which is a police matter. You can also get a civil injunction through the County Court to stop in contacting you. Meanwhile, a solicitors letter may remove the need for all of the above.

If I can get a sketch or photographs or some of the details, I can probably expand my answer.

Meanwhile, I can tell you that you can acquire a right of access/right-of-way/easement over the neighbour’s land in a variety of ways:

{C}1 because it’s expressed in the deeds and then it can’t be removed even if it’s never used or because there is an alternative

{C}2 under the doctrine of Lost Modern Grant because it has been used for so long, since time immemorial, that it must have been done by a deed but the deed has been lost

{C}3 under the Prescription Act because it has been enjoyed by you and/or your predecessor without consent and not in secret and without objection for a continual 20 year period.

Provided at least one of the above is satisfied, then the obstruction, certainly the chain probably the pillars, constitute a substantial obstruction and you could apply to court to get them removed. And you could ask the court to award legal costs against him. Once again, the initial solicitors letter might remove the need to go to court if you have the right as I indicated and the neighbour sees sense.

Can I clarify anything arising from this?

I am happy to answer specific questions arising from this?

Please rate the service positive. It’s an important part of the process by which experts get paid.

We can still exchange emails.

Best wishes.

FES.

F E Smith, Advocate
Category: Law
Satisfied Customers: 8987
Experience: I have been practising for 30 years.
F E Smith and 3 other Law Specialists are ready to help you
Customer: replied 5 months ago.
Would you be able to suggest how I might word an initial response asking him to remove the chain. This MAY work without having to engage a solicitor to further inflame the situation. I have attached a picture of how it was BEFORE he put up the bollards and chains. As you can imagine, when my quite large car is in the space it fills it completely and the chains prevent me from walking to the path as I and residents prior to me have always accesssed the shared path.
Customer: replied 5 months ago.
It won't let me add the picture file ?
Customer: replied 5 months ago.
It won't let me add the picture. The address you want is EX5 5EL (St Andrew's Road) and the layby can be clearly seen on Google Maps.
Customer: replied 5 months ago.
I have had to add the picture on a separate request.
Expert:  F E Smith replied 5 months ago.

I’m afraid the photograph wasn’t attached to the other question. Is it the layby with the steps in the middle, the breezeblock wall to the right hand side painted white, stonewalled to the left, opposite what looked like the church/chapel car park? If so, I have that.

I can certainly help you word the letter . It’s a shame that your snotty neighbour is not as concerned about inflaming the situation as you are.

Can you explain which part is yours, which parties the neighbours, exactly where the bollards and the chains are and tell me what your deeds say about the right-of-way? Thank you

Customer: replied 5 months ago.
This should be a three page pdf which includes what you asked for. Our deeds say we have right of access across No 1 to get to no 2. We own a section in the middle of the layby immediately to the South of the shared access path which is owned by him and which we have right of way over.
Expert:  F E Smith replied 5 months ago.

Thank you.

There appeared to be 4 properties but I don’t know which is number one and I don’t know which is number four I think number one is the nearest the road.

Hence, number 1 would have access across the layby only as far as 1. 2 would have access over 1. 3 would have access over 1 and 2 and 4 would have access over 1 and 2 and 3.

The path appears to be straightforward because it’s the layby where he has put the posts.

I don’t know what access you have over the layby. You have said that you own the middle part which is to the south but it’s very difficult to see which way is south. I assume that small red pointer is going north.

Correctly if I’m wrong but your area of the layby then appears to be looking at the steps, the part from the left of the steps which includes the grey bins up as far as the area where you have put little circles which I assume represent posts.

The problem now is that to get from your piece of the layby, by the grey bin, you have to step out in the road and between these posts rather than simply walking straight up the steps.

Can you please confirm that the pathway which extends from the steps to the road, between the red lines of the centre photograph, is actually shown on his deeds as being owned by him?

The issue therefore seems to be (please clarify whether you are entitled to go from your area of the layby, by the grey bin, to the part between the two red lines and hence proceed up the steps. Please confirm that to be the case.

If that is the case, and it simply says that you have the right of way over the area between the red lines which is an extension towards the road from the steps, I think he has made a substantial obstruction to that right-of-way because it does not say that it is accessible only from the road. Further, under the Prescription Act and I imagine the Doctrine of Lost Modern Grant you and your predecessors have been accessing the steps directly from that piece of the layby since time immemorial. Please confirm.

Can you please, if possible, attach the Official Copies of Title and the Plan so that I can look at the wording of the easement and the plan?

Customer: replied 5 months ago.
I am messaging from work, but my partner is just looking to send me a copy of the deeds. I certainly have no recollection of it ever having made reference to accessing the shared path from the road and, as you rightly surmise, myself and all predeccessors have been accessing the steps directly from that piece of layby since the layby was built several decades ago. As it happens, we had also been driving across his area of layby to safely access our carparking space without driving across a blind corner, but he installed the bollards when we were away and we just let it go as he is so very territorial about anybody ever touching anything that belongs to him. There are only two houses present sharing that layby. No 1 Cowley Barton Cottage (owned by Mr Peter Tyldesley who installed the bollards and chains) and no 2 Cowley Barton Cottage (owned by us, Amanda Drake and Kevin Ryles).
Expert:  F E Smith replied 5 months ago.

Thank you for the sketch. That is what I imagine the situation was. Subject to confirmation that it simply says you have access over the area shaded whatever colour and which is the part from the bottom of the steps to the road, in my opinion, the metal bollards and the chain in particular are a substantial obstruction and you are entitled to get them removed. That is providing the deeds don’t say that you have access from the road.

I can draft a letter for you but there is an extra fee or I can tell you basically what to say here which is that you have a right-of-way documented in the deeds, that this role of Ballard is a substantial obstruction and that he has 21 days from the date of the letter to remove them failing which you will apply to court for a mandatory injunction to making remove the substantial obstruction and you will ask the court to award costs against him.

Can I clarify anything arising from this?

I am happy to answer specific questions arising from this?

Please rate the service positive. It’s an important part of the process by which experts get paid.

We can still exchange emails.

Best wishes.

FES.

Customer: replied 5 months ago.
The wording of the Deeds (which he has kindly had printed on a sign and attached to the fence for us to read daily !) is as follows:
Restricted Pedestrian Right of Way
The Owner of 2 Cowley Barton Cottages has the right at all times with or without handcarts for all purposes connected with the use and enjoyment of the said premises a single private dwelling house but not for any other purpose whatsoever to pass and repass along the path leading from St Andrew's Road and in front of the adjoining property known as no 1 Cowley Barton Cottages Cowley aforesaid and for the purpose of going between the said road and the premises herby conveyed 5 July 1976
My only query is that it mentions the path "leading from St Andrew's Road" but for time immemorial we and our predeccessors have been accessing that part of the shared path along it's entire length, not just from the road end. Hope I'm making sense... you really have been most helpful so far.
Customer: replied 5 months ago.
What would the charge be for a letter ?
Customer: replied 5 months ago.
I will not be accessing this page until after the weekend now so will write the letter myself.
Expert:  F E Smith replied 5 months ago.

The wording is really useful. Interpreting the wording alone, it does mean that you can only use it “for the purposes of going between the said road on the premises hereby conveyed”. So, he would be able to do what he has done had it not been for the fact that you have been accessing that pathway and your predecessors have been accessing that pathway and you have been driving over it for more than 20 years.

Hence, you need to add in your letter the point that notwithstanding what it might say in the title as you have been accessing the path from the layby both on Fort and in vehicles for over 20 years along with your predecessor, you have acquired a prescriptive easement and hence, the bollards are a substantial obstruction to that easement and hence you want them removed.

You reserve the right to make an application to court to have the easement formalised and have the bollards removed.

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