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Thomas Judge
Thomas Judge, Lawyer
Category: Property Law
Satisfied Customers: 33082
Experience:  Over 20 years experience
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I have had access and right of way over a concreted plot of

Customer Question

I have had access and right of way over a concreted plot of land between my chinese take away and my commercial neighbour for 23 years. Our neighbour now has blocked access by various mean. We naturally wish to reclaim our long standing right over this plot. Especially our side door and windows opened on to it.
Submitted: 2 years ago.
Category: Property Law
Expert:  Thomas Judge replied 2 years ago.
Is the right of way in your deeds?
Customer: replied 2 years ago.

No but there has been unimpeded access in the now disputed plot for over 25 years which only stopped when the fence was put up.

Just today another fence was put up very close to the side wall of the takeaway preventing the use of this door to exit the takeaway and blocking light entering into the take away through the window adjacent to the blocked door.

Expert:  Thomas Judge replied 2 years ago.
If you have been using the right of way for the last 25 years and this can be evidenced then you may be able to claim the right of prescription. There are 3 ways in which prescriptive rights can be acquired- under the Prescription Act 1832, common law or the doctrine of lost modern grant. The latter is the most commonly used, as once the 20 year period is established (in your case you have 25 years), the prescriptive right is acquired and cannot be lost even if the use is stopped or prevented. Under the 1832 Act, the 20 year period must be immediately before any court action or application to the Land Registry is made to crystallise the easement.As much evidence as possible is needed to show that the requirements of prescription have been met. This includes, but is not limited to, the following:Statutory Declarations, by people with knowledge of the type and length of use Detailed plans to show the exact route of the right of way Title information of the land burdened and benefited Photographs/sketchesYou can make an application to the court for an injunction and/or damages. You should get a solicitor to write to them to seek the removal of the fences and threaten an injunction if it is not removed within say 7 days whereupon you will take them to court. The cost would normally be between £3-5,000 but if successful you can look to recover some of this sum from them. I hope this helpsPlease remember to rate
Customer: replied 2 years ago.

Many thanks for your reply, Could you please advise if not withstanding the issue with the fence preventing access the fact that it is blocking light getting into the building is in itself a certain contravention of the Prescription act since there is clear evidence that this window has been allowing light in unobstructed for many more than 25 years.

Thanks

Expert:  Thomas Judge replied 2 years ago.
Yes against it is evidence based - but a right to light may be acquired by ‘anyone who has had uninterrupted use of something over someone else’s land for 20 years without consent, openly and without threat, and without interruption for more than a year.’ I hope this helps. Please rate positively.
Customer: replied 2 years ago.

Thanks

The company have a gate across the disputed land which they keep locked with a padlock. This heavy gate is supported on the take away side by a post that is affixed by a bolt at the top driven into to the wall of the take away. This was erected before the current owners bought the property and was agreed by the take away owners at that time. In view of the circumstances the owners of the takeaway have decided that they no longer want to allow this. Are they entitled to insist on the supporting bolt to be removed and the area of brickwork (which has become seriously damaged by the weight) repaired at the Companies expense? If they refuse are the take a way's owners entitled to remove the brickwork from their wall that the bolt is implanted in (without touching the bolt itself)?

Thanks

Expert:  Thomas Judge replied 2 years ago.
I am happy to help, but this is now technically a new question - please rate positively the fits question and then I will be happy to continue to help
Thomas Judge and other Property Law Specialists are ready to help you
Customer: replied 2 years ago.

do you mean I would have to pay again? That would be a shame as it is a question pertaining to the same boundary dispute issue?

Expert:  Thomas Judge replied 2 years ago.
No I will still do it for you
Customer: replied 2 years ago.

Oh thanks I have now done the rating for "part 1" of your advice

Expert:  Thomas Judge replied 2 years ago.
They are entitled to seek its removal as it remains on their land from what you have written.
Customer: replied 2 years ago.

thanks

How can they "seek" its removal. If they ask for its removal and, as I suspect, get either a negative answer or no answer what can they do next? would they be justified in dismantling their brickwork around the bolt without damaging the bolt in anyway-even though this might cause the gate to fall down

Expert:  Thomas Judge replied 2 years ago.
They would have to serve notice that they are no longer allowing the trespass and then give a reasonable period from it to be removed.