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Aston Lawyer
Aston Lawyer, Solicitor
Category: Property Law
Satisfied Customers: 10585
Experience:  LLB(HONS) 23 years of experience in dealing with Conveyancing and Property Law
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I have brought a 130 year old property, it have 4 gardens backing

Resolved Question:

I have brought a 130 year old property, it have 4 gardens backing onto the property, on my title deeds it states a barrow way l(alley) runs along the back of my property. I also have a door that has been bricked up but did lead onto this alley way (within the last 10yrs). This alley is on my title deeds but not the other 4 properties which are approximate 30yrs old. C
They are claiming this allay way as their land, can they do this?
Submitted: 2 years ago.
Category: Property Law
Expert:  Remus2004 replied 2 years ago.
Thank you for your question. My name is ***** ***** I will try to help with this.
Thanks for requesting me but this isn't my area.
I'll opt out for others
Customer: replied 2 years ago.

Sorry but what do you mean by opt out for other?

Expert:  Aston Lawyer replied 2 years ago.

Hello and thanks for using Just Answer.

I am Al and am happy to assist you with your enquiry.

Could you clarify the following please-

Is the alleyway land shown as forming part of your property on the Land Registry filed plan? If not, does the alleyway now form part of the 4 neighbours gardens?

Or do your Deeds just give your property a right of way over the alleyway?

Kind Regards

Al

Customer: replied 2 years ago.

My title deeds state right of way over the alleyway, plus I have to pay my share of maintenance costs for looking after the alleyway.

Expert:  Aston Lawyer replied 2 years ago.

Hi,

Thanks for your reply.

As your Deeds grant your property a right of way, then the land will be owned by the 4 neighbouring properties.

Are you enquiring as to whether you can use the alleyway, as I am not too sure.

I look forward to hearing from you.

Kind Regards

Al

Customer: replied 2 years ago.

Yes I need to use the alley way and I also want to open up my bricked up doorway for a fire escape.

Expert:  Aston Lawyer replied 2 years ago.

Thanks for your reply.

So I am clear, did your Solicitor ask your Seller when the last time the alleyway was used- ie I note it was blocked up approx 10 years ago, but did you get to find out if the alleyway had been used immediately prior to it being bricked up?

Kind Regards

Al

Customer: replied 2 years ago.

I will contact the seller to find out the last time they used the alleyway, in the meantime is there a time limit involved i.e. if the alleyway hasn’t been used for say 10years it can be claimed by others?

Expert:  Aston Lawyer replied 2 years ago.

Hi,

Thanks for your reply.

There is no time limit involved when looking at whether a right of way ceases to have effect.

Generally once an easement or right of way has arisen it will continue indefinitely unless it is extinguished or released, either by express agreement of both parties or the party with the benefit of the right of way has taken some positive action or step to abandon the right of way. The mere blocking up of a wall, for example, is not necessarily an act of "abandonment".

A right of way, a sstated above, can be sometimes impliedly released by the owner’s actions or in rare cases by the owner’s inaction. It can on rare occasions be established that a right has been abandoned. However, this is a not easy to establish as at law there is no obligation on a party to exercise that right. Failure to do so will not automatically result in an easement or right of way being released due to the assumption that it has been abandoned. If the owner explains the non use he or she may still be regarded as not having abandoned the right. Failing to use an easement or right of way is not of itself sufficient and abandonment will not be inferred. The owner must make it clear that he or she is abandoning the right not just for himself but also for his successors in title.

In the case of Benn v Hardinge (1992) 60 P&CR 246 the Court of Appeal said that the failure to use the right for 175 years was not enough on its own to indicate an intention to abandon.

There is an assumption that the right has been abandoned where it can be shown that the original character of the dominant land has been changed to such an extent that the right of way has become unnecessary or impossible to exercise.

However, this is only a presumption and can be rebutted by the owner producing evidence to show that the original character of the dominant land can be restored at a later date and that the need for the right would be revived (ie in your case, by now wishing to use it for a means of escape).

This is a complex area of the law but from what you have told me, the right of way still remains in effect. You should perhaps speak to a local Solicitor, who could write to your neighbours explaining the law.

I hope this helps. If so, I would be grateful if you could rate my answer.

Kind Regards

Al

Aston Lawyer, Solicitor
Category: Property Law
Satisfied Customers: 10585
Experience: LLB(HONS) 23 years of experience in dealing with Conveyancing and Property Law
Aston Lawyer and 2 other Property Law Specialists are ready to help you