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.
Could you confirm if you enjoy a formal right of way over the private road in your deeds please?
Similarly do you have any rights over the other half the drive?
We don't have formal rights over the road, however we have driven over a small section of it for 15 years and the previous occupiers of our house did so for a number of years before that. The other half of the drive directly accesses the public highway, but is difficult and at times impossible to access due to parked cars.
Thanks. Do you have any rights over the other half of the drive?
Did the previous owners drive over the road for more than 5 years do you know?
We can only assume they did. The original plans for the house (built 1984) show a single drive with access to the public highway only, however this has been converted to a double drive which required the use of the private road. Our previous next door neighbours (on the other side) had placed a large boulder on the corner of their garden making it impossible to drive directly onto the highway. This was removed by the current owners.
Thanks. Finally would you be able to contact the previous owners of your house or would this not be possible?
No, as they were friends with the neighbour we are in dispute with. We may be able to contact our ex next door neighbour who could confirm the usage prior to our ownership.
Thanks. The starting point would likely be to look at your title deeds to establish whether there is any formal right in the deeds over either the other half of the drive to give access to the highway or over the private road. If you have rights in your deeds over either then such rights can be enforced and any obstacles can be removed if necessary by way of a court injunction as obstacles which substantially interfere with any ROW you have amount to a derrogation of grant of the right and are unlawful.
If you have no formal rights over either, then you may be able to establish a right by long use under the Prescription Act. However you need to show 20 years of continuous use without the permission of the owner in order to do so - hence my query as to whether you might be able to contact the previous owner in order to obtain a formal declaration from them as to their use.
Your solicitor should have established that you had a legal right of access to the property however it would be too late to pursue him for negligence if he had been negligent after 15 years.
If the private road is subject to a public right of way or even better is adopted as public highway then you could of couse exercise any public rights of way that may exist. The councils highways department will be able to confirm if the road is adopted though from what you say it is not, and the council will also have a copy of the "definitive map" which will confirm if there is any public right of way over the road.
Many coucils publish such information online though not all.
If there are no public rights of way over the road and you have no formal right of way then you would be reliant upon establishing a right by long use for which you would need to obtain statements from individuals familiar with the property establishing 20 years of continuous use of the same.
Having looked at the office copy of our deeds, the following paragraph is in the first schedule 'To pass and repass over and along the new roads now or hereafter to be constructed on the estate with or without vehicles and at all times and for all purposes' also the definitive map shows the road coloured grey, as per all public highways, however there are other private roads in the close that are NOT greyed.
Thanks. Was the private road you refer to constructed as part of the development estate which you house forms part?
Thanks. On that basis the above is a formal easement over the road which is enforceable. The easement is not expressed to be subject to your contributing towards maintenance and accordingly there is no obligation to do so
You can require that any obstacle preventing access over the road is removed and if necessary you can apply for an injunction in the county court to require the neighbour to remove such obstacle and costs.
The form you need to make such an application is N16A
Is there anything above I can clarify for you?
No that's fine. Thank you very much.
A pleasure. If I can assist any further as the situation develops please do not hesitate to revert to me
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