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wingrovebuyer
wingrovebuyer, Senior Solicitor
Category: Property Law
Satisfied Customers: 737
Experience:  Bachelor of Laws (Honours); PG Diploma in Law; Member of ALA; 9 years' experience
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3 properties, including ours are accessed by a privately owned

Customer Question

3 properties, including ours are accessed by a privately owned shared drive. The drive is owned by property A which is first on the drive.The entrance to property B is next. Property C is our property at the end of the drive. Our title and that of property A shows the shared driveway terminating on our boundary. This has been understood and reflected on the ground since 1972.
Property B have produced conveyancing plans from 1940, detailing the right of access continuing across what became our land. We have no documents recording a termination of the right of access, although this was clearly the intention when the land was sold for the construction of our house in 1972
Property B have now requested that the right of access be reinstated across our land and that our Title deeds are changed with Land Registry accordingly. Their stated intention is to put an entrance into their property from within our garden.
Where do we stand?
Submitted: 10 months ago.
Category: Property Law
Expert:  wingrovebuyer replied 10 months ago.
Hello. Would the reinstatement involve demolishing a fence or wall between the properties? If so, when was this erected please? 1972?
Customer: replied 10 months ago.
Yes there is a continuous fence and 4m high hedge on the boundary that as far as we are aware has been in place since 1940 but at least since 1972. The neighbours own this fence/hedge. The right of access is across an area adjacent to the fence on our side that we use as driveway so no demolitions needed. They have no way of accessing their property from an extended right of access on our property at present due to the fence. They would have to demolition a section of boundary fence to create an entrance.
Customer: replied 10 months ago.
I do have a site plan that I can forward later today.
Customer: replied 10 months ago.
As a further point they are requesting that all existing structures (including trees) within the 6m right of access on our land and neighbours land are removed due to being obstructions. These have been there since 1972.
Customer: replied 10 months ago.
Siteplan uploaded. We are Crowsteps. Tydehams Meads are claiming the right of access across the land adjacent to our boundary, at the end of the access drive that is owned by Shepherds. The grey dashed line indicates their 20ft claimed width.The Crowsteps/Tydehams Meads boundary has had a continuous 2m fence plus 4m hedge since 1972, both of which are owned by Tydehams Meads.We have no structures within the Right of access area but they are requesting that our neighbour Shepherds, take down trees that run adjacent to the existing drive which is 3m wide and that they consent to widening of the access road.
Expert:  wingrovebuyer replied 10 months ago.
Great, thanks. If the properties were in common ownership since the right of way was granted (ie 1940?) then it will have been extinguished because properties in common ownership cannot have "rights" against each other. So, if the same developer owned your property and Tydehams Meads, any right of way was enxtinguished when he owned both properties. If this didn't happen, then I think you can argue that the right of way has been abandoned. There is an old legal adage: "Once a right of way, always a right of way", but this isn't strictly true when it comes to private rights. If the person whose property benefits from a right of way acts in a manner inconsistent with a desire to exercise and retain that right, it can be argued that the owner has effectively abandoned the right. Simply not using a right is not usually sufficient to show abandonment, but blocking it up often is. You say the neighbours own the fence and hedge they want to remove - but if that's been in place for over 40 years, I'd say you have a strong argument to say that they have abandoned any rights they had. The argument depends on establishing that the benefitting owners had intended never to use the right again - the fact they have had a physical boundary in place for over 40 years is good evidence to infer this intention. Best, WB
Expert:  wingrovebuyer replied 10 months ago.
Hello. I am unable to accept your phone call request. If there is anything unclear about my answers so far, can you confirm what and I will try to clarify using the messaging service. If my answer is clear, please leave a rating. Best, WB
Customer: replied 10 months ago.
How would we go about pursuing the notion of abandonment. They have approached this through Land Registry with a view to getting Land registry to reference their title documents in ours. This seems imminent and no-one to date has raised 'abandonment' as an option to pursue.They have now stated their intention to put gates in. Would we challenge that with a solicitors letter? If the Land Registry reference goes through is it then too late?
Expert:  wingrovebuyer replied 10 months ago.
You need to contact Land Registry and lodge an objection to the neighbour's application - say the easement was not noted on the title and has been extinguished by either (i) merger or (ii) abandonment. That way, you're keeping your options open. Land Registry will issue notice of your objections on the neighbours and offer you both a chance to negotiate a resolution. If you can't, then the matter will go to Tribunal and they will decide who is right. You really do need to appoint a solicitor to help you directly with this - they can also clarify the abandonment argument. In the meantime they should also write to the neighbours telling them not to do anything to the boundary or to enter your land, at least until the dispute is resolved. Please leave a rating, Best, WB

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