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Remus2004
Remus2004, Barrister
Category: Property Law
Satisfied Customers: 69790
Experience:  Over 5 years in practice.
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I am the subservient estate owner in an easement dispute. The

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I am the subservient estate owner in an easement dispute. The easement was granted in 1888 as written in our title deeds of this date. The dominant estate owner does not live at the property but sub-lets to tenants (3 different tenants in 3 years). The tenants wish to store their bicycles in the alleyway and use it to gain access to the front of the dominant estate's property without having to go through said property (this request has been made directly by the dominant estate owner in writing, by letter). This inconveniences us in terms of noise we then experience through our property as well as access we can enjoy. Can we challenge the easement? Or do we have to allow storage and access for tenants of the dominant estate owners - I would be grateful for any advice you are able to offer.
Submitted: 2 years ago.
Category: Property Law
Expert:  Remus2004 replied 2 years ago.
Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

What is the exact wording of the easement?
Customer: replied 2 years ago.

'The land is subject to the following rights reserved by a Conveyance of the land in this title dated 23rd August 1888 made between (1) Charles Ellis (vendor) and (2) Robert David Dawson:-


 


"Subject nevertheless to a right of way for the owner and occupiers for the time being of the adjoining House belonging to the said Robert Prestney at all times and for all purposes to pass and repass over through and along the passage way on the East side of the said messuage and premises hereby conveyed."


 

Expert:  Remus2004 replied 2 years ago.
Thank you.

Presumably you own the alleyway and the other owner as the right-of-way over it

The right-of-way gives them the right to pass and repass for all purposes. It does not give them the right to linger or park on it or store things on it.

It is also implied that they must not cause nuisance or damage in exercising the right.

There is nothing to stop them bringing their bicycles through the alleyway but they do not have the right to keep them in the alleyway. Exactly the same thing would apply if it were a refuse is container or a wheelie bin, they cannot keep it in the alleyway.

You cannot challenge the valley duty of the easement after all this time and you cannot get it extinguished except by agreement.

The only challenge you have is the use to which it is put and if they are storing bicycles in the alleyway, you could get an injunction to stop that.

It may be an idea to get a solicitor to write to the owner of the property and to the tenants wishing to store their bicycles advising them of the legal situation and saying that if they continue to park their bicycles in the alleyway and cause noise nuisance and inconvenience for anyone else wanting to use the alleyway, you will seek an injunction to get it stopped.

Can I clarify anything for you?

Jo
Remus2004, Barrister
Category: Property Law
Satisfied Customers: 69790
Experience: Over 5 years in practice.
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Customer: replied 2 years ago.

Thanks Jo. Could you just clarify 3 related issues:-


1. What is meant by "the valley duty of the easement".(which you say we cannot challenge)?


2. Can we store anything down the alleyway as long as the tenants have the room to take their bikes through it/access is still possible e.g. my garden tools? or should the alleyway remain completely free of anything by both sides?


3. If my garden tools remain, am I in breach of the easement and subject to trespass by the dominant estate?


Many thanks - I have some peace of mind now!


 


 

Expert:  Remus2004 replied 2 years ago.
I apologise that is a typographical error. It should be validity.

If it is your alley you can store what you like in it provided you do not substantially obstruct it.

So for example, provided you do not obstruct it, you can put your bin or your bike in even though the person with the right-of-way cannot do that. What you must not do is "substantially obstruct" the right-of-way. So provided even with what you put in there, there is free and unrestricted access there is no problem.

Once again, if it is your alley and you are the only got someone else with a right-of-way over it, you can store what you like in it, garden tools etc provided you do not obstruct the other person's right-of-way. On the other hand, they cannot store their garden tools in it because all they have is the right-of-way and they are not owners
Customer: replied 2 years ago.

Thanks Jo.


Please accept the bonus as a token of my appreciation of your swift and clear advice


Liz

Customer: replied 2 years ago.

Can you clarify or give an example of what might constitute "substantial obstruction"?


Thanks


Liz

Expert:  Remus2004 replied 2 years ago.
Thank you for the bonus and the positive rating.

What is "substantial" is decided on the facts of each particular circumstance.

A substantial obstruction on a path which is 1 m wide would be a wheelie bin.

It would not be substantial on a path that is 3 m wide although it would be substantial if the path is 3 m wide and it is used for vehicle access.

For pedestrian access the test (not very scientific but nonetheless the legal test) is whether anyone can take a wheelbarrow down the access way without worrying about hitting the sides.

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