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chatham-chamber
chatham-chamber, Solicitor
Category: Property Law
Satisfied Customers: 11847
Experience:  LL.B, Pg.Dip, LL.M, M.B.A (Pending), Solicitor-Advocate. UK Practising Certificate issued by SRA., DIFC Courts Registered (Dubai)
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My neighbour has access over my garden, until 3 weeks ago he

Customer Question

My neighbour has access over my garden, until 3 weeks ago he has never used this access in the last year I have lived in the property. He has now decided to keep his gates wide open and uses the access. Can I fit a gate, obviously this would never be locked. More to stop his chickens, ducks etc coming through and to stop my dog entering his garden.
Submitted: 1 year ago.
Category: Property Law
Expert:  Aston Lawyer replied 1 year ago.

Hi, thanks for your enquiry. Firstly, as I am sure you aware, just because your neighbour has not used his right of way for the last 12 months doesn't prevent him from now exercising the right. As it is only a right over your property, you would be perfectly within your rights to install a gate, provided it does not prevent your neighbour from exercising his right. So, provided you don't have the gate padlocked, you are fine, and if you were to padlock it, you would have to give your neighbour a key. I hope this assists you and sets out the legal position. Kind Regards Al

Customer: replied 1 year ago.
I have had a solicitors letter that says that the erection of a gate would cause a substantial interference with my neighbours free use and enjoyment of right of way. Unless I confirm in 7 days that I am not going to construct a gate they will commence injunction proceedings to stop us from doing so.
Expert:  Aston Lawyer replied 1 year ago.

Hi, there has been plenty of case law stating that the installation of a gate is not an obstruction, provided the party with the right of way is able to open it freely. It sounds to me that the Solicitor is just trying to scare you- an injunction proceedings are likely to cost your neighbour a good £5,000! on top of this, the fact that the gate is to stop the escape of animals, it is sensible that a gate is installed. I hope this helps. Kind Regards Al

Customer: replied 1 year ago.
The party wall has a gate with in it, as per the covenants laid out in theTP1 document.The only reason we are considering installing a gate as the current gate is secured permanently open now and the neighbour refuses to close it, leaving are garden unsecure from both parties livestock.
Expert:  Aston Lawyer replied 1 year ago.

Hi, well, as I have already said, from a legal point of view, you are perfectly within your rights to do as you plan. Kind Regards Al

Customer: replied 1 year ago.
From the deeds it says it is a party wall, we know he financed the building of the wall are we within our rights to hang the gate from it ?
Expert:  chatham-chamber replied 1 year ago.

Hi,

I agree with my colleague. I note what you say regarding the financing of the wall. I would be the of the opinion that you would be able to hang the gate provided the neighbour is able to use it freely.

I hope this answers your questions. If so, kindly rate the answer and provide feedback.

I will then be happy to answer any follow up questions.

Customer: replied 1 year ago.
Are you a 100% sure that my neighbour cannot stop me from hanging a gate that he can open freely for his access.
Expert:  chatham-chamber replied 1 year ago.

Hi,

This is my opinion. If the neighbour pursues the matter through the the courts, I believe he would have a tough time of proving it was an obstruction if they have free access.

You can never be 100% certain and that is the nature of litigation.

I hope this answers your questions. If so, kindly rate the answer and provide feedback.

I will then be happy to answer any follow up questions.

Kind regards