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JGM
JGM, Solicitor
Category: Scots Law
Satisfied Customers: 11568
Experience:  30 years as a practising solicitor.
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I bought my detached home through my solicitor,4 years ago,neighbours

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i bought my detached home through my solicitor,4 years ago,neighbours at back of property claim right of way through my poperty (a pathway)they claim to have used for 20 years or so.My solicitor did not mention this or can it be found on any title deeds theirs or mine.i blocked access to this nearly 3 years ago. the neighbours have been asked to have a meeting with me to discuss this on a few occasions and have not taken this oppertunity .but for me to recieve a citation for court coming this morning . please help advise me.
Submitted: 2 years ago.
Category: Scots Law
Expert:  JGM replied 2 years ago.
Thank you for your question.
This is an unfortunate situation but is unlikely to be the fault of your solicitor.
The law in Scotland is that if someone uses a route over another person's property openly, peacably and without interruption for a period exceeding 20 years, the law creates what is called a servitude by prescription.
A servitude is a right to use the land and prescription just means by the passage of time.
Because it is created by the passage of time, it is not written into the title deeds or any other records and is usually proved by witness evidence to the effect that the route has been used for over 20 years.
The existence of a prescriptive servitude is not a thing that is normally asked of a seller in the course of a conveyancing transaction unless the nature of the property is such that it is apparent that such a thing is likely, such as on agricultural land, for example.
Notwithstanding that, I would suggest that you ask your solicitor for an explanation as to why this wasn't asked at the time. You would also have to consider whether that would have stopped you buying the property had you known of the situation.
Happy to discuss further.
I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 2 years ago.

Hi JGM

thank you. pathway was not apparent at time of purchase, boundry wall between me and neighbours at the back has a wide opening in it ,i have asked for a fence and gate there ,they wont do this or let me do it. and despite my lawyer requesting ameeting with them where the neighbours and i can come to an agreement this has not happened .lawyer was instructed to do so latest at Christmas time 2014 ,all was quiet until the citation this morning,

I understand that prior to( allow) my bunglow being built (1993)the property of my neighbours was a villa where the owner an older man was allowed to cut across this property.but since the older man is no more the villa has been developed into 3 flats and these three owners claim right of way.

This causes me and my family anxiety it is a nuisance .they have dogs ,which i do not want on my property.We have not been able to enjoy our house especially around the back of the property, as we feel intimidated by them.the police have been involved due to their behaviour towards us. also when they pass over my property they cross the side and front of the house and we dont have any privacy.

is there not a point of defence in my favour?

Expert:  JGM replied 2 years ago.
As the dominant tenement was originally one property and therefore a prescriptive servitude was created by the owner of that property using the route for at least part of the required 20 years, your defence is as follows.
A servitude has to be exercised with as little inconvenience to the servient tenement as possible. Your property is what is known as the servient tenement because you have to suffer the usage of the servitude by the dominant.
However, get your lawyer to research this (the textbook "Servitudes and Rights of Way" by Professors Cuisine and Paisley would be a good place to start).
Because the one property is now three, the usage has increased. This is not allowed. Take for example an access road to a farm. The farmer has access over someone's road. The farmer decides to sell the farm for housing. He thinks the access road can be used by all the houses. In law it can't because the servitude was only for access by one unit, namely the farm, not 100 houses.
The same is true here to a smaller degree. Three houses can't use the access which was previously only for one. The right of access, in my opinion ceased at the point that the three units were formed.
This is your starting point. I hope this helps.
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