Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.
may I clarify that presumably from what you say, the right of way he enjoys is over your land is please?
Assuming the above is correct, do I understand correctly that there is no longer any space for a car to enter onto his land having having driven over yours? Would there still be space for a motorcycle or something of that nature?
there is no space for a car, but a motorcycle would be able to park there. but I don't know if it would have room to turn on his land, and reversing would mean egress onto a very busy road with poor visability,
yes to the first question the right of way is over my land
thank you. Rights-of-way that are granted formally by deed - i.e. referred to in your title deeds - are very difficult to extinguish. They can be extinguished principally by by formal deed signed by your neighbour, by abandonment or by alteration of the dominant land ( i.e. the land which benefits from the right-of-way) however the courts have set a very high level of proof to establish abandonment or alteration as a means to establish extinguishment
it has not been used for car access in more than, probably 15 years, would that count.
also, the land use has predominantly changed from garden to dwelling by more than 70%
It will be useful for me to outline some of the case law so you can see the level of test the courts impose. For absndoment to be shown it msut also be shown that the owner of the dominant land had a fixed intention never, at any time in the future, to assert the right to the easement or to attempt to transmit it to someone else Tehidy Minerals Ltd v Norman 1971
A claim for abandonment will, therefore, only be successful if the owner of the dominant land does some act clearly indicating a firm intention that neither the owner nor its successors will make use of the easement in the future (Williams v Usherwood (1983)). The fact that an easement has not been used for a very long time is not sufficient to show that it has been abandoned. The cessation of use must be coupled with the necessary intention. In Benn v Hardinge (1992) the non-use of a right of way lasted for 175 years, but this did not raise any presumption of abandonment because an alternative means of access had meant that there had been no occasion to use the right of way.
in terms of alteration of the neighbour's land so as to preclude use of the right of way, again, this is likely to present difficulties. In the case of CDC2020 Plc v Ferreira a right of way had been granted for all purposes in connection with three garages. Subsequently, the garages were demolished and replaced with a car park. The dominant owner continued to use the right of way.That use was unlawful because it was no longer in connection with the garages but no objection was made. Sometime later, the dominant land was purchased for redevelopment. The car park was demolished and new garages were built on the site of the old ones. When the developer came to exercise the right of way, the owner of the roadway objected, claiming that the easement had been abandoned. The Court of Appeal held that even though the demolition of the original garages and the construction of the car park had been substantial works, they did not justify an inference that the claimant's predecessor in title had intended to abandon the right of way.
accordingly, you can see the very high bar that the courts set with regards XXXXX XXXXX abandonment or extinguishment of a right-of-way other than by express deed. You need to demonstrate that the dominant owner has an express intention to give up his right-of-way by his actions. This requires at the least, evidence that by the neighbour's actions, he could never exercise the right of way again and that this was his intention on the balance of probability. On the facts you refer to, I think it would be very difficult to meet this test is from what you say, he can still access his land either by motorcycle or perhaps a very small car. even if this were not the case, as you can see from the above decisions, this may still not be enough to meet the test required by the courts
you could of course negotiate with the neighbour for a release of the right-of-way but I appreciate that he is probably unlikely to agree given what you say. I'm sorry the above is probably some way short of what you ideally wanted to hear. However my concern would be that you do not spend not inconsiderable sums of money making an application to the court without full knowledge of the body of case law that stands in your way. If his future actions with his land demonstrate in your view a clear intention to give up the right-of-way, so that it could never be accessed or used again, the position may improve of course in terms of an application for extinguishment there is still the issue of demonstrating an intention to give up the right-of-way
is there anything above I can clarify for you any further?
Does the above answer all your questions or is there anything I can clarify or help you with any further?
well I think when he built the extension it was a demonstration of intent to give up the vehicular right of way in
favour of the granting of permission for the extension
I agree with you up to a point however my concern is it falls short of the standard required by the courts particularly as from what you say, he can still exercise a limited access for example by motorcycle or on foot. Of course, I do not say that any application to the court is doomed with certainty to failure as the outcome of litigation can never be certain. All I would say is to exercise caution in terms of a cost benefit analysis as it would be unfortunate to spend what could be not insignificant sums on bringing an application to the court which has some substantial potential weaknesses, in particular that above.
if you decide to proceed, you can make an application to the County court using form N244
is there anything above I can help you with any further?
thank you, XXXXX XXXXX been very helpful. I think that covers my enquiry fully.
Thanks. If I can assist any further as the situation develops please do not hesitate to revert to me
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thank you, XXXXX XXXXX
trying to rate you, but can't seem to click on the ratings! help what am doing wrong?
I am not sure. There may be a fault as someone else has mentioned difficulty earlier. Could you tell me what happens when you try? I will make a report. Thank you for trying
when I try to click the rating button, it says you have not finished answering.
Thanks for trying. I will make a report. Please do not trouble yourself any further.
good luck with sorting it out - you have my e.mail if you need to get verification of the problem