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Thomas
Thomas, Solicitor
Category: Property Law
Satisfied Customers: 7609
Experience:  UK solicitor holding an England and Wales practising Certificate.
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If I have a right of way past neighbouring property protected

Customer Question

If I have a right of way past neighbouring property protected by a deed of covenant and a neighbour is building a gate across that right of way directly in breach of one of the terms of the covenant are they possibly guilty of being in breach of the peace or disorderly conduct? If not what other recourse is there to enforce the deed of covenant?
Submitted: 3 years ago.
Category: Property Law
Expert:  Thomas replied 3 years ago.
Hi

Have they offered you a key to the gate?

May I have the wording of the right of way please?

Kind regards

Tom
Customer: replied 3 years ago.

There is no key. It is 2 separate farm gates. It is an old buiding split into 4 dwellings and there is a share right and responsibility for upkeep of the grounds and house and splitting bills that is governed by a trust.


The exact wording of the relevant restrictions on the covenant say


Restriction 4. "Nothing shall be done or omitted or suffered to be done in any dwelling or any part of the land attached to any dwelling which may be or become or tend to be or become a nuisance or annoyance or damage to the owners or occupiers of any of the others of the three dwellings or the owners or occupiers of any neighbouring property"
Restriction 9 "No fences or boundaries are to be erected in any part of the garden other than those existing save with the prior agreements of all such owners"


So the problem is really the erection of the boundary without consent.


I had hoped that if that could be construed as breach of the peace then I could involve the police.

Expert:  Thomas replied 3 years ago.

Hi

Thank you for your question and patience, I’m Tom and I’ll try to help you.

The police will not be interested in this, I’m afraid. They will (rightly) say that it is a civil matter for you to resolve privately.

The good news is that it appears to be fairly clear; if the gate has been erect without your consent and is not part of the those that were existing as at the date of the deed of covenant then it is a breach of the covenant by you neighbour.

This means that you will be able to enforce it against them.

In the first instance I would write to them giving them a copy of the covenant and stating that the gate has been erected in breach. It should require them to remove the gate within a reasonable time (say 2 weeks) otherwise you will issue proceedings for an injunction to have it removed.

If they don’t remove, then you should contact a local solicitor to write to them with a letter before action stating that you will issue proceedings with a claim for your legal costs in the event that it is not removed within a further week.

If they don’t remove then you should issue proceedings for an injunction from court ordering the removal of the gate. You should be successful.

My goal is to provide you with a good service. If you feel you have received anything less, please reply back as I am happy to address follow-up issues specifically relating to your question.

Kindly rate my answer if you are satisfied with the information I have provided.

Kind regards,


Tom

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