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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 26069
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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right of way. if a particular path/exit is not part of a commercial

Customer Question

right of way. if a particular path/exit is not part of a commercial lease but the tenant uses it for a number of years with the knowledge of the landlord, and he cleans, repairs and maintains that area regularly, does the tenant gain a right to that use ongoing and what are the remedies if (after several years) the landlord seeks to stop that established use?
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 if you are the landlord or tenant in this scenario please?

JACUSTOMER-t4hys32v- :

tenant

Joshua :

Thanks.

Joshua :

A tenant can only acquire a legal right to do something in limited ways. The first and most obvious is a formal right granted by deed which includes a right granted under a lease. From what you say such a right has not been granted here.

Joshua :

The second is by long use. A tenant can acquire a right if he can show that he has exercised a particular right openly for 20 years or more consecutively without the landlords permission under the Prescription Act. From what you say here the right has been exercised with the landlords permission which prevents a right from accruing.

Joshua :

The third is by licence - i.e. a right exercised with the landlords permission. This is not a full legal easement (right) as would be rights acquired by the above but rather gives a contractual right to do something. However the right can still be exercised under the terms agreed between the tenant and landlord. A licence is revokable by the landlord subject to an agreed period of notice (or failing which a reasonable period of notice). If you could show that the landlord had given you a licence to do something for a period and is now seking to withdraw that right without giving reasonable notice (or the agreed notice) you can hold the landlord to the notice agreed or a minimum notice period. If no minimum notice period was agreed then the landlord would normally be required to give a minimum notice equivalent to the greater of either the period in which you pay rent (i.e. monthly, quarterly etc) or 28 days.

Joshua :

If a right or licence cannot be established under one of the three above heads, then the action would normally be an act of trespass and actionable by the landlord by way of seeking injunction, or claiming compensation if the act causes damage to his land.

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

JACUSTOMER-t4hys32v- :

if the agreement had been given by the landlord, and as a result the tenant spent money on improving, maintaining and securing the access way, then is the "reasonable" period much longer for the tenant to be able to benefit from his investment, and if the landlord does seek to suddenly revoke the use without notice, is there a claim for damages for these costs? what is the "reasonable period" of notice in such circumstance?

if that revocation causes risk of death or injury by blocking a potential fire escape, how does affect matters?

Joshua :

If you are able to show that the landlord promised a right if you improved the access way or that he promised a right and in reliance of this promise you spent money then it is possible to rely on something known as estoppel to maintain that right. Estoppel runs on the basis that where A promises something to B and B suffers detrimetn in relying on that promise, A shall not be allowed to rescind that promise. You would need to be able to prove the promise was made on the balance of probability and show the detriment you have suffered on order to rely on this remedy.

JACUSTOMER-t4hys32v- :

ok, so that seems like the avenue i can pursue. the right wasnt promised on condition of the tenant doing the work, it was more the tenant relied on the promised use to undertake work.

JACUSTOMER-t4hys32v- :

so final question, should a claim be made for an order that the landlord cannot rescind the promise, or for damages, or either/both?

Joshua :

If you can show on the balance of probability that assurance or promise was given and that you as tenant have broadly carried out that work to your detriment you would establish grounds for estoppel. You will need to consider that estoppel can only be used as a sheild not a sword. In other words you cannot attack the landlord using estoppel. Rather you would have to advise the landlord you intend to continue to use the access and that if he seeks innctive relief against you you would defend on the grounds of estoppel.

Joshua :

Put more simply you cannot apply for any form of order to secure the right using estoppel. Rather you set your postion out to the landlord and advise that you will defend on grounds of estoppel any attempt to prevent further access.

Joshua :

Have I been able to help you with all your questions on the above?

JACUSTOMER-t4hys32v- :

ok, so to maintain access, i would be permitted to remove/break any lock placed by the landlord?

Joshua :

If you contend that you have a right of access under estoppel having regard to the above requirements then you can give notice to the landlord that you content that you have a right of access and that he should remove any impediment within say 3 days failing which you will take steps to remove impediments yourself and that if the landlord considers he has a right to prevent access he should seek an application to the court in this respect which you will defend on the above grounds. The landlord may seek costs for any damage to his property you cause so this should be kept to a bear minimum.

Joshua :

Alternatively if he has obstructed access you could decide to seek an application to the court for an order that access is restored.

Joshua :

Is there anything else I can clarify for you?

JACUSTOMER-t4hys32v- :

thats great. thanks for your all your points, the comprehensive options and the specific detail. thats v helpful.

Joshua :

I'm glad it was of some assistance.

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