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Thomas
Thomas, Solicitor
Category: Property Law
Satisfied Customers: 7569
Experience:  UK solicitor holding an England and Wales practising Certificate.
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If I have a right of way as per my deeds on private land owned

Resolved Question:

If I have a right of way as per my deeds on private land owned by another person how can I be trespassing? This is a right of way alongside my house into my back garden and then to my back door.
Submitted: 2 years ago.
Category: Property Law
Expert:  Thomas replied 2 years ago.
Hi
Thanks for your question.
Who had said you are trespassing and what is that argument for why you are trespassing given that you do have a right of way?
Kind regards
Tom
Customer: replied 2 years ago.

Private lane. One of the residents in the lane now owns the lane , but not immediate neighbour. We moved in in 2006. he bought the lane in 2012. The area in question access only to the rear of my house, which comes off main access lane. I also park my car in the area, which is in between my garage and my house and garden as stated already. Previous occupants of our house used it as parking area for over 20 years.

In 2009 I applied for planning permission to put a canopy on the side of my garage partly over the area in question. It is only attached to the garage, not the ground.It was passed so I have had full planning permission since 2009. all notices were served and certificate etc.The resident who now owns the lane , but was a resident only then did not object and was quite happy as we spoke to him before putting in for planning permission. He made no representation to the local council at all nor has ever since.

Relations with him have soured very much since and he has been throwing his weight around . He has had court action with another neighbour.

The problem now is he has suddenly changed his mind, and because he now owns the lane he says through his solicitor we have to remove our canopy totally although it has been up for nearly 6 years. He is just being bloody minded and now wants revenge for some reason ?

Can he just change his mind like that after all this time and because he now owns the lane?

His claim is the canopy should not be there because of " Trespass "over his land" . Our area and the canopy does not affect his property in anyway nor any other resident who are all quite happy and we have good relations. As I have said we have full right of way over this area and the right of way into the side door into the garage which is under the canopy. My solicitor confirms this is the case. The council confirms this but say because it is a private lane they have no jurisdiction.

How can this be trespass re the canopy and what chance has he in court to make us take it down. ?

Is £28 enough for an answer ?

Many thanks for your time.

Kind regards

Trevor

Expert:  Thomas replied 2 years ago.
Hi Trevor,
Thanks for your patience.
If the issue relates tp the overhanging of the canopy then my view is that this is a slightly differnet easement (ie. a legal right) than a right of way. A right of way is generally for on-foot or vehicular access over a piece of land, usually for a particular purpoes. A right to overhang is slightly differnet and if your right (or another right that you have evidence in your title documentaion) states that you have a right to overhang your neighbour's land then he could not enforce the removal of it now and you would fine.
If there is no right of overhang then your neighbour might have a cause of action against you and may be able to apply for a injunction that the canopy is removed. If he agree to the overhanging of the canopy previously then ideally you would have asked them to execute a deed of easement giving you a right of overhang. If he is not minded to apply to court for an injunction then nothing will happen. If he does apply to court then you would have to defend on the basis that he should be estopped (ie. restricted) from disputing the overhang because of his earlier express consent (or implied consent) to the canopy. Depending on the court's view of his consent and whether he was capable of giving consent and dido then you may get some traction with this defence.
It's not clear, basically, and if he applies to court then you're going to have a sticky dispute on the question of consent and whether it was revocable. It's not the best of positions to be in, but it's not the worst because he appears to have agreed earlier to it and you will just have to wait and see how it plays out because there is not a great deal that you can do at this stage (if he is not willing to execute a deed of easement) until he issues, if he does.
Kind regards
Tom
Thomas, Solicitor
Category: Property Law
Satisfied Customers: 7569
Experience: UK solicitor holding an England and Wales practising Certificate.
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Customer: replied 2 years ago.

Thank you Tom, very helpful.

Going back to 2009 I have a witness in the lane , one of our immediate neighbours who heard him say he was happy about our planned canopy and had no problem /

What about the fact that he made no written objection when he received the notice or no representation to the council nor has ever?

I could not get the easement for overhang at the time, although I did everything I could at the time in giving notice to the owners of the time who were the administrators ,Baker Tilly because the real owners Award Homes had gone into liquidation, so the only owners were the administrators and they would not reply to me but the council will confirm this, so we went ahead anyway and it was passed. I have copies of the documents sent to Baker tilly and the council said we had done all we could ! The new owner did not buy the lane until at least 2 years later?

The canopy has been up for 6 years, what about the 4 year rule when after that a structure can not then be removed?

Sorry to bother you further but this is so important to us and we can not see after all this time he could legally make us remove it.

Thank you so much

Trevor

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