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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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we own the drive that owners of 2 properties have to drive

Resolved Question:

HI we own the drive that owners of 2 properties have to drive over to access their plots. The access point is right outside my back door as I own the drive could I change the access point as we cannot park outside of our house in case they need to get to their properties thank you Debbie
Submitted: 2 years ago.
Category: Property Law
Expert:  Joshua replied 2 years ago.
Joshua :

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.

Joshua :

May I ask is this a shared driveway situation where you own the drive way but the house next door has to drive over it to get to their house or as I suspect, is this a situation where you own a driveway which two other dwellings use to access their houses?

Customer:

It is not shared we own drive but must give the owners of 2 plots right of access to their properties. The access is right outside my back door and they have plenty of land to change but don't want to thanks

Joshua :

Thanks. Do the two dwellings have formal rights granted by deed to the dwellings over your drive? If so are you aware of plans showing the route and extent of access?

Customer:

yes

Joshua :

From what you say do I understand correctly notwithstanding the above, on a practical level, access could be provided using another route without any material significance to the dwellings in question?

Customer:

yes

Joshua :

Thanks. Finally are you familiar with the transfer or conveyance wording that grants the rights of way? Do you know if there is any provision that provides a right for you to determine the route and extent of the ROW from time to time. Such provisions are less common but do exist.

Customer:

we bought the property 3 years ago and need to know if we can change access point as they own all land on one side of drive and we own everything on our side

Joshua :

It is worth checking the conveyance or transfer for the existence of a provision such as the above. If such a provision exists (which is not overly likely but quite possible) then you will have a right to alter the route or extent of access subject to the terms of the provision without the formal consent of the two dwelling owners. If there is no such provision to alter then the position is more challenging...

Customer:

we dont think theres provision so where do we go from here to start thanks

Joshua :

In the absence of the above, you have a drive which is subject to a formal easement (ROW) which cannot be materially altered or reduced without the consent of the dwelling holders even if you can provide alternative access which is materially no less convenient. If this is the case then you will need the dwelling holders consent to alter the access way. The best way of achieving this if you are not friendly with the dwelling holders is to offer them something which is in some way superior to what they have now - this could be new tarmac or something you feel they may want. Ideally the cheaper the better. It is of course quite possible that they will be very cooperative and open to your proposal but human nature dictates that you are more likely to achieve your objective if you offer them something. In a worst case they may demand money to agree to any alteration but one would hope this would not be the case.

Joshua :

If you can obtain their agreement either becasue they are unconcerned or because you offer them somthing in return then once the alternative access is physically ready you can ask your solicitor to prepare a "deed of grant and release" to release the existing easement and grant the new one simultaneously. If any of the three of you have mortgage lenders those respective lenders will need to join in and sign the deeds too - usually not a problem providing the lender is satisfied that the alteration does not devalue a property.

Joshua :

If you find you have to go to any expense in order to get them to agree - such as laying new tarmac, you may wish to enter into a contract before you actually sign the above deeds so you do find yourself paying out only to find they change their minds at the last minute.

Joshua :

Is there anything above I can clarify for you?

Customer:

They are really hostile so couldn't talk to them Can we gate the access point so they have to get out of car to open and close it

Joshua :

It is possible to gate a right of way providing you do not make it materially more difficult for them to use it. There is caselaw in respectof gates and ROWs which has held that a gate shall not be a derogation from a ROW providing you provide the user with the means to open a gate - i.e. if locked the key and that any lock should be appropriate for the access. i.e. a padlock and chain would not be appropriate for a gate in constant use but a simple key lock may.

Joshua :

Ideally so far as possible you may try to repair relations with them to see if you can engineer the above. Gating is unlikely to do so even if it is legal. Of course some people are unreasonable as a matter of course. You may be able to use other means as leverage...

Joshua :

You could check the conveyance to see if their rights of way are subject to their paying maintenance. Many ROWs are. If so you could seek to claim maintenance payments but offer to relax this in return for an alteration of the access. Not guaranteed but it can be effective to bring unwilling parties to negotiate.

Customer:

If we put please close the gate would they have to do it because I also look after my grandchildren and are always worried when they are driving by thanks debbie

Joshua :

There would be no legal requirement for them to do so unless their ROW was subject to such a condition which is unlikely I regret. There are various practical means avaialble for closing of gates using delayed springs etc though one has to be careful that damage will not be caused to cars in using such mechanisms.

Customer:

Thank you I will look through paperwork tonight at conveyance Debbie

Joshua :

If I can assist any further as the situation develops please do not hesitate to revert to me

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

Joshua, Lawyer
Category: Property Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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