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.
From what you say do I understand correctly that you do not wish to give the neighbour a key please?
there is no padlock on it just a bolt which I only put on if I am home and using the garden. If I am not using the garden or I am out it is always open
I have had issues in the past with tradesmen leaving the gate wide open leaving my child vunerable and my dog able to escape... plus I don't want complete strangers able to just walk in without me there to ensure my daughter is safe
But I must stress I have never and would never block access, I always open the gate to let people in
Thank you. unfortunately, locking the gate in such a way that prevents your neighbour from exercising his legal right-of-way without your involvement would amount to an unlawful interference I regret. The courts have considered what amounts to an interference with a right. They have decided that there can be no substantial interference if, despite the obstruction, the right of way can be "practically and substantially exercised as conveniently" as it was before Hutton v Hamboro (1860) and Colls v Home and Colonial stores Ltd (1904). however, having to ask you to open the gate or even wait for you to open the gate would fail that legal test laid down by the above case.
however, this does not mean that you cannot lock the gate. The courts have held that adding a lock to locate will not amount to an unlawful interference with the right-of-way providing that all persons that benefit from a right-of-way shall have a key
ok, the deeds however say the occupier, they say nothing about tradesmen
I just feel its unreasonable, I am simpy keeping my child safe for goodness sake because he doesn't always close the gate behind him
What I have found a solution to the issue you are experiencing in the past - you will not be surprised to know that you are not the only person that has this issue - is the fitting of a standard Yale type lock which automatically locks upon closing the gate, together with a spring return which closes the gate automatically after you go through
The combination of these two devices will mean that the gate closes automatically and only those individuals who have a key will be able to go through the gate. Providing you give the neighbour key, he will not have a complaint that you are unlawfully interfering with his right of way
And what about the fact the deeds say the occupier has right of way... does this mean he can give the key to any one hepleases and they can come into my garden?
Do you happen to have the exact wording of the right of way to hand?
'a right of way on foot only over the pasageway on the west side and at the rear of the property hereby conveyed in favour of the occupier or occupiers of the property NoXXXXX/p>
thank you. You appear to be quite correct that the right-of-way is limited to the occupants of that property. It is not what is known as nor purposes right-of-way which would include rights for the occupiers agents and contractors to use the same. Accordingly you can ask that the right-of-way is any exercised by the occupant or occupants and not contractors quite legitimately
Presumably the occupant will not wish to give keys to contractors typically and the above arrangements, whilst not absolutely guaranteeing that contractors cannot use the gate, should nevertheless reduce the use on a practical level simply because they are unlikely as a matter of course to have a key
If the matter becomes an reconcilable between you and the neighbour, whereby he continues to allow servicemen in through the gate by providing them with keys, you could consider obtaining an injunction against him to prevent this continued behaviour though I would very much hope that this would not be required. If you feel the need to do so, you can apply for an injunction using form N16A
Is there anything above I can clarify for you?
Can he accompany tradesment through?
And what about my dog? He says I shouldn't have one? Also the step on the decking?
Not according to the terms of the right-of-way. The right-of-way is limited to the occupant or occupants of the dwelling and accordingly third parties would have no lawful right.
There is no prohibition on owning a dog unless there is a provision in your title deeds that provides for a covenant against dog ownership. Providing the dog is kept reasonably under control in order that it does not cause a statutory nuisance nor injury to any third parties, keeping a dog is quite in order
Is the decking constructed on your land? Is is constructed over any part of the right of way you refer to?
yes and there is one step
Thanks. Is any part of this step constructed over the right-of-way? If so does the step mean that bins cannot be moved in and out as conveniently?
yes it is.... but no, bins can still be moved I manage mine without an issue
I guess it's a difference of opinion
The step as there when we moved in and my previous neighbour had no issue.
thank you. as to whether the step is unlawful or not is determined in law under the tests laid down in the same above cases - namely whether the right-of-way can be practically and substantially exercised as conveniently with the step in place. typically the courts apply a measure of the degree to which an obstacle slows down the exercise of the right of way or substantially increases the difficulty of exercising the right of way. As you quite rightly identify, this is to some extent a matter of individual judgement.
One more question...he is threatening to take me to court...if he does and I subject to court fees?
if he decides to issue an application in the court, if he is successful, he could make a claim for costs against you. Costs in a relatively straightforward matter could amount to £2-£300 they if the latter is heavily contested with solicitors becoming involved, such costs could escalate. If at all possible, court proceedings would be avoided as it is in neither of your interests to have to declare a formal dispute as such matters can impact upon future sales as buyers tend to be wary of buying property which has a history of dispute.
I want to sort this amicably but I also want to keep my child safe. Ill fit a lock and give him a key but am pretty certain he will still want his gardener to come through and I am unsure how I can stop him.... other than injunction. I am not an unreasonable person it's so frustrating.
I quite understand. Sometime sitting down with a neighbour and trying to discuss your respective concerns can be effective particularly in reducing the risk of either of you reach into litigation which generally does not benefit neighbours in the long run even the party that is successful. If all else fails, then you do have the option of litigating whereby potentially you could succeed in forcing him to limit his use of the right of way to himself as occupant and he could potentially succeed in forcing you to remove the step. You could each potentially have a limited victory and end up with unwelcome costs to pay as a result and both remain dissatisfied to some extent. If Labour is entirely unreasonable, you may feel that this is your best approach however if there is any possibility of compromise and agreement then a further attempt at negotiation is normally worthwhile
is there anything above I can help you with any further?
ok, sorry I am a little confused, as the deeds state only the occupier can access, why do I need to force this issue? however I would be ok with tradesmen entering if they knock first... do you mean try and make this compromise?
Sorry for any misunderstanding. What I mean to say by the above is that if the neighbour insists on continuing to provide his gardener with access against your wishes, you have the ultimate option of applying for an injunction - i.e. forcing him to comply with the limits of the right of way
ok thanks you have been extremely helpful... I think he has more to lose than I do so I will try and talk to him again.
it seems reasonable to give him a key but insist the gardner knocks and in return the step can stay... we shall see
I think on balance you are probably correct. It seems to me that he may be able to score a small victory against you in terms of the step if he is fortunate but providing you allow him reasonable means of access for himself with key etc as above, he could lose the right to have his gardener come throughout all meaning that the gardener may have to traipse through his property to get access to the garden.
Accordingly, I would hope there is a compromise to be found which is acceptable to both of you
If I can assist any further as the situation develops please do not hesitate to revert to me
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