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Remus2004
Remus2004, Barrister
Category: Property Law
Satisfied Customers: 70696
Experience:  Over 5 years in practice.
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Our neighbour has a vehicular and pedestrian right of way over

Resolved Question:

Our neighbour has a vehicular and pedestrian right of way over our land to his property but has built 7 foot high electric gates in a 7 foot high fence at the boundary to his land. This requires all visitors to stop on our land and call on the intercom for the gates to be opened - or not, if no-one's in. When coming in the neighbours have a remote to open the gates and usually keep moving, but on leaving they always stop just outside the gate (and right beside our garden and house) in their Range Rovers, while the gates fully close, which can take 10 or 15 seconds. We find this very intrusive. It seems to us that most gates are set back from any right of way, private or public, so that any stopping is done on the gate-owners' land. Can we ask our neighbours to stop stopping and/or lingering on our land because of their choice to put gates on the boundary? Or ask them to move the gates well back onto their own land to ensure that all stopping/lingering is done on their land?
Submitted: 3 years ago.
Category: Property Law
Expert:  Remus2004 replied 3 years ago.
Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

What is the exact wording in your deeds regarding the right of way please?
Customer: replied 3 years ago.

Hi Jo. Builder bought the plot and built 3 terraced houses, of which we are the middle. He is the end one, farthest from road (on our private drive for 3) and he has to pass through our property (house/garden one side, garage/sheds on the other) and he is the one with the gate and fence on our mutual boundary. In the Transfer Deed:


13.3 Rights Reserved for the Benefit of the Retained Land [Builder's]


..13.3.1.5 A right of way at all times and for all lawful purposes with or without vehicles over that part of the property coloured green ("the Access-way") on the Plan.


13.5 Restrictive Covenants by the Transferee [self and wife]


..13.5.1.1The Transferee shall not do or permit the doing of any act whether of a temporary or permanent nature that may interfere with or restrict or in anyway prevent or prejudice the full and free exercise by the Transferor of the rights reserved for the benefit of the Retained Land in clause 13.3 or may come to do so and for the avoidance of doubt this includes an obligation by the Transferee not to park on or obstruct the Access-way.


That's all I can see that is relevant.

Expert:  Remus2004 replied 3 years ago.
Thanks.

Thats all I need to know.

Whilst the deeds specifically stop you parking or obstructing the accessway, there is no obligation on the builder.
It is implied however that if he has a right of way, he does that, without causing obstruction or nuisance.

However, he is not causing obstruction. He is not interfering with your use. What he is doing is causing nuisance.
It is Private nuisance because only you are affected.

Whether the nuisance is actionable or not depends on the severity of the nuisance.

If you raise this with the builder and he refuses to move the gate, you are faced with a court action which could be brought with you and expensive if you lost.

The court case could easily cost £10,000 and perhaps even more, if you lost although you one, you would get those costs awarded against the builder.

Check your house insurance to see if you have legal expenses cover that would pay for the legal costs of any litigation.

I know how annoying this is for you. You do have a claim to make in nuisance and for an injunction. However, it is a particularly strong claim and I would not like to say with any certainty, if this went to court, that you would win. It comes down to whether you want to take that risk if the builder refuses to move the gate

I'm sorry that this is probably bad news for you

Can I clarify anything for you?

Jo
Customer: replied 3 years ago.

Thanks Jo, that's very clear. Just 2 things. (1) should the third sentence in third last para read "..., it is not a particularly strong claim ..."? (2) we had read elsewhere (http://www.boundary-problems.co.uk/boundary-problems/priv-r-o-w.html), though without any legal back-up or precedent, that, "generally, you may pass and repass along a right of way as long as you do not stop and linger on the right of way". We see the sense in your reply, which would make the above generalisation nonsense.

Expert:  Remus2004 replied 3 years ago.
Thanks.

I'm just offline soon overnight but I will look at this in the morning if thats OK?
Customer: replied 3 years ago.

Yes, that's fine, of course! Smile

Expert:  Remus2004 replied 3 years ago.
Hi

I've had a look as can't sleep!

It does but it also says “A vehicular private right of way permits you to:stop a vehicle on the right of way immediately adjacent to the dominant tenement for the purpose of loading and unloading that vehicle provided that there is not an adequate loading or parking area on the dominant land;

and this will come in the same bracket. In fact, they are not even stopping to load, they are stopping to open the gate or the press the buzzer to ask for the gate to be opened, which takes even less length of time.

The rule is that any obstruction must be “substantial”, before it is actionable. There is no substantial obstruction here.
Your claim is in nuisance, not for obstruction or interfering with the right of way.
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