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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9801
Experience:  I have been practising for 30 years.
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My deeds stipulate a right of way is granted to our

Customer Question

My deeds stipulate a right of way is granted to our neighbour to access his property he may drive across our land (identified within a hatched area). However it states that either he or I must not obstruct at any time. My neighbour is now looking to install electronic gates therefore does this not form an obstruction; as he will no doubt linger on my driveway and this block my vechicular access.
Submitted: 13 days ago.
Category: Law
Expert:  Aston Lawyer replied 13 days ago.

Hi, thanks for your enquiry.

Could you please confirm that the whole of the accessway belongs to you and that the land on which your neighbour intends to put the gates is on your land (as opposed to both of you owning half the access each)?

I will be off line on and off this morning so please bear with me with replying to you. Thanks Al

Customer: replied 13 days ago.
Hi AlI am guessing that the gates would be situated on his side of the boundry, FYI my deeds stipulate that I owe the boundry hence he would need my permission to tie into it the existing fence( that runs to the side of out property’s) so I am under the impression he will need to situate it back of the boundry . (Please advise if my understanding is correct). The right of way is across my property (the right of way is identified on our property plan as a hatched area and runs at the back of my driveway). We have had many problems in the past 5 months with his visitors parking and blocking the right of way and thus blocking my access to drive off my driveway (all recorded on cctv and numerous photos) I have written to him, informing him he needs to stop blocking the access however his response was to threaten me with legal action regarding harassment which is complete non sense. It is subjective to why he is putting in gates but it is certainly going to escalate the issue of blocking the driveway in the future, as i am in no doubt that his visitors will continue to park or wait in the right of way. We are also concerned with the impact of the gates, as they will be visible to the front of my property. Can you advise in this situation If gates would need planning permission (we spoke to the council and they said it depends?, which doesn’t sound like pro-active more retrospective) also in them selves would gates not be considered as an obstruction (as they will be locked) and hence the right of way will be blocked when visitors turn up and can’t get access on to his drive way. Both sets of deeds (his and ours) do stipulate that the right of way must be kept clear at all times.
Expert:  F E Smith replied 10 days ago.

This situation with electronic gates is not at all uncommon. The situation is that if there is a right of way, then before the right-of-way is deemed to be obstructed that the obstruction must be “substantial”. What is substantial is a matter of fact. If this right-of-way was only used by you and you had the code, then it’s not likely to be a substantial interference. However, if this is access to your property which people use all the time and it would inconvenience visitors and deliveries et cetera, then this is likely to indeed be a substantial obstruction. The problem is of course but ultimately, you cannot beat the neighbour with a blunt instrument until he stops installing these gates and your only remedy is to take him to court for an injunction to prevent him and his remedy is to defend that or to apply to court for a determination as to the legality of the installation of the gates and whether it does indeed create a substantial obstruction or not.

In my opinion, the fact that you can see the gates is not relevant.

.Can I clarify anything else for you? I’m happy to answer any specific points arising from this.

I’m happy to answer any specific points arising from this.

Please take a moment to look at the top right hand corner of the page and rate my service by clicking one of the stars at the top of the screen. It’s important you use the rating service because that gives me credit. It doesn’t just give me a pat on the head! All you need to do is press Submit. Thank you.

If you still need any point clarifying, I will still reply because the thread does not close.

Best wishes.

FES.