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Thomas
Thomas, Solicitor
Category: Property Law
Satisfied Customers: 7505
Experience:  UK solicitor holding an England and Wales practising Certificate.
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Hi We bought a semi detached property which at the time

Resolved Question:

Hi

We bought a semi detached property which at the time had access to a strip of land to the right of the property (next to the garage).
Previous owners always assumed they owned it and had used it for about 40 years but had never fenced etc so it wasn't ticking the boxes for them to claim under adverse possession. When property went on the market Sept 2012 they put up some fencing so it could only be accessed through the break in the hedge in the back garden.

The elderly owners went in to a home so the property was empty until we bought it. We new the land was unclaimed - no owners on deeds or with the land registry etc. so knew we had no legal right over the strip.

Between our offer being accepted and us completing on the property, a man who garden backs on to the back of our garden, took down our fencing and put up his own. He has applied for planning permission for a garage and to change the front access to vehicular access which has been granted.

Due to his fencing (blocking our access from the garden) and his locked 5 bar gate at the front, we can now not access the strip of land (which although he is building on, does not belong to him) which means we cant access the right hand side of our garage to carry out repairs, or for me to maintain the right hand side of our hedge.

Given when we bought the property, there is no writing info to say that we have to request permission to access and tend to the right hand side of garage and hedge, are we entitled to apply for or expect free access to that??
Submitted: 2 years ago.
Category: Property Law
Expert:  Thomas replied 2 years ago.

Hi

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

If you require access to your neighour’s land in order to carry out maintenance to your land and you cannot carry out the maintenance from your own land then you should be able to enforce this against them but you may have to go to court.

In the first instance you should write to them stating that you require the access for maintenance purposes because you cannot do it from your own land. You should state that you believe you are entitled to such access under the Access to Neighbouring Land Act 1992 and if this is not granted within 14 days of the date of the letter then you will apply to court for an order.

If the neighbour does not respond or does not allow you access then you will have no option but to apply to court under the aforementioned act for an order that access is afforded to you by the neighbour. If you are able to demonstrate that the repairs are essential and that you cannot carry them out from your own land then you are highly likely to be successful.

Once the order has been made your neighbour would be in contempt of court if they did not give you access, so you will certainly get access.


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.


Kind regards,


Tom
Customer: replied 2 years ago.

the term requiring access - do you mean if I ask them to unlock the gate they must do so?


 


I suppose my point is that as they do not own the land (but have simply begun the claiming process by fencing it off) I do not feel I should ask every time I wish to tend to the right hand side of the hedge and garage. I want to have free access to that.

Expert:  Thomas replied 2 years ago.
Hi,

Yes, the principle behind the act is that they must allow you access to maintaining the land. This would include unlocking the gate.

Once you have the order you will be able to get access to it when you reasonably require it to maintain your property.

If they do not own the land but have fenced it off then the court should still make the order if the neighbour has the power to give you access even if they don't own it.

Please do remember to rate my answer once you are finished.

Kind regards,

Tom
Customer: replied 2 years ago.

Forgive me if I am being a tad dim - do you mean they would have to leave it unlocked at all times for us to access it? So for us to have right of way?


 


As a further example - we do need to carry out maintenance on the side of our garage and when we purchased the property we would have just been able to put some small scaffolding up to do so. However, as Mr Greedy has begun to build the garage and the section we will be working on would essentially be the driveway on land which is not his. where do we stand with that? He is not going to be happy if he can't access his garage (the risk you take when building on land that isn't yours in my opinion).


But as I mentioned before, there is nothing in our housing pack to say we need to ask anyone's permission to tend to our property.

Expert:  Thomas replied 2 years ago.
Hi,

It's means that they would have to either let you have access on reasonable notice (eg 48 hours) or give you a key so that you could effect access yourself.

If he builds on land that is not his then it is for the owner of the land to dispute it and attempt to cease the works. If the land is not yours then you are not going to be able to get him to stop the works unfortunately.

If you wished to indirectly get him to cease the works then you would have to contact the actual owner of the land to make them aware of the proposed encroachment.

Kind regards,

Tom
Customer: replied 2 years ago.

There is no known owner of the land but our property were the ones to have had 'enjoyment' of the land over the past 40 years. They were the ones who have tended it for all those years. Is it too late for us to try and apply for continued enjoyment (sitting with the property, not us as new owners) under the lost modern grant through the land registry?

Expert:  Thomas replied 2 years ago.
Hi,

You might have an outside chances if you were able to trace the previous owners and they were willing to put in the effort to help you claim - potentially - but if you were considering this then you would certainly have to get specific advise locally from a property solicitor after they have taken a look at the land registry titles, photos etc).

I should think that your opportunity to claim adverse possession is certainly gone though, so it would be strictly limited to claiming an easement which sounds like it's going to be an evidential stretch at the moment.

Please remember to rate my answer.

Kind regards,

Tom
Customer: replied 2 years ago.

Ok, thank you.


 


So where would we stand now if he were to say he didn't want us to put scaffolding up to do our repairs as it would then not leave enough room for him to drive in and out of the strip.


Just seems so very unfair that it is not his land and yet by him doing this it completely changes our ease of access. I would like to have a permanent right of way - is that the same as the accessing a neighbouring land act?


 

Expert:  Thomas replied 2 years ago.
Hi,

If it's not his land then he has no right to do that and you would have a court order to state that you can have access for specific maintenance, so he would have to give you access for the purpose of repair.

The order would state the conditions of the access that you request and it's not quite the same as an unfettered legal easement such as a right of way, but you are not likely to be able to claim a legal easement without the evidence of your previous neighbours unfortunately.

Kind regards

Tom
Customer: replied 2 years ago.

We have photos and copies of the sworn statements provided by the previous owners from when they applied to the land registry but were unsuccessful as at that point they had not fenced it.


Would that be enough?

Expert:  Thomas replied 2 years ago.
It might be, but you would have to take it all to a property solicitor locally and get them to give you an opinion on whether it is evidentially sufficient.

If it is well detailed enough to prove a right of access then this might be the way to go, but it would be folly for me to say "certainly" because I have not seen the statement/photos/land registry titles etc).

I would certainly think it's worth paying the price of a consultation with a local property solicitor though.

I have a meeting now, and would only be able to answer any further clarifications you require in about 45 mins.

Kind regards,

Tom
Customer: replied 2 years ago.

And in terms of the actual garage being built - the land is 4 meters wide and the garage is 3.5 meters in width meaning it will be a quarter of a meter from our hedge - is this within the law??


 


Many thanks

Expert:  Thomas replied 2 years ago.
Hi,


If he has obtained planning permission for it then it would be legal, yes.

You will agree that I have answered your original question now.

Kind regards,


Tom
Customer: replied 2 years ago.

Yes indeed. Thank you


Bye

Expert:  Thomas replied 2 years ago.
Hi

Please remember to rate my answer

Tom
Thomas, Solicitor
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Experience: UK solicitor holding an England and Wales practising Certificate.
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