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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 10246
Experience:  I have been practising for 30 years.
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My parents have been involved in a dispute with their

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My parents have been involved in a dispute with their neighbour over boundaries and, as a result, we used the services of a RICS mediator. They live in a mid terrace of three Vicorian cottages and have Right of Way across the back of the neighbour's property and on the front pathway. Right of Way is clear on the neighbour's Title Deeds and my parents have had this for all of the 31 years that they have lived there. They did not give up these rights as part of the RICS process. Within a couple of weeks of the end of RICS' involvement the neighbour has divided the front pathway with a wooden baton down the pathway (2/3 and 1/3) and put down different couloured shingle on each side. On the side adjacent to my parents' land he has put alternate large pots and rocks with between 12 - 18 inches between them. This makes it very difficult for people to access my parents' front door. Is there a definition of what Right of Way is in terms of reasonable access? Having gone through difficult times with this neighbour we do not want to cause further upset for our parents but we are concerned that he is trying to make things so difficult that they will stop using the front pathway and then try the same at the back. My mother is already unable to use the front pathway due to mobility issues and can only use the back.

A right-of-way on foot has to be the width of a wheelbarrow. It’s a rather odd definition but that’s what it is.

However if your parents have the right of way over an area coloured in a particular colour on the deeds there if they have a right of way over an area edged red or blue or whatever colour, then they have the right of way over the whole of that area.

It would assist greatly if you could tell me what the dispute is about, why RICS were involved what the outcome was.

As much detail as possible is really useful please. Thank you

F E Smith and 3 other Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you. The properties are over 100 years old and the plans we have going back all of that time were not particularly accurate and had no dimensions. The neighbour moved in 6 years ago and made life quite diffiicult for my parents as he was constantly questioning what they did and claimed they were encroaching on the property next door. He does not own it, he is the partner of the daughter of the owners but acts with their agreement. My parents have been in their home for 31 years and previously had no dispute with the family who own the property until he moved in. My parents are nearly 80 and all of this began to affect the health of my father in particular who had a TIA following on from a threat of legal action the neighbour made when my father was putting up a fence panel. As a result, my sister and I wrote to the neighbour asking him not to have direct communication with our parents but to address any comments to us. We did this a year ago and received several letters back comprising about 11 pages ranging form the position of a nail to where the boundaries at the front and back should be. We took advice and were told that the most sensible course of action was to use the services of the RICS mediation. Both sides agreed to this. The surveyor appointed took all relevant documents and plans that my parents had and presumably from next door. He then attempted to negotiate to resolve matters about the boundaries as the plans were not clear. He said, and put in writing in an email, that the neighbour was very difficult to deal with and effectively my parents gave way on a number of issues to bring matters to a close and have lost some land as a result. Although the surveyor appointed by RICS offered to support my parents over any subsequent issues he has not really wanted to do so when they contacted him over the pathway. The RICS agreement was completed 6 weeks ago. The neighbour then instructed a local builder to change the pathway as described in my first email.
I have a copy of the Assent document from 1988 for the property next door when the current owners took possession of the cottage upon the death of their son. It says "a right of way for the said respective owners and occupiers at all times to and from the said adjoining hereditaments over and along the footpath on the hereditaments hereby conveyed from the public road at the front of the same as shown by the dotted lines on the said plan between points "A" and "B" on the said plan.................. a right of way at all times and for all purposes for the said respective owners and occupiers to and from the said adjoining hereditaments hereby conveyed as shown on the said plan between points "C" and "D" on the said plan
I also have a copy of this plan with these dotted lines and points marked on. The plan was drawn up nearly 100 years ago and is not drwan to scale but the points and dotted lies are clear as is are the words "Right of way" at both the front and back.
These issues were not part of the RICS mediation and my parents have always exercised their rights of way and have not agreed to give them up.
As I said earlier, we do not want further aggravation for our parents but do not want them to lose this valuable right which they have had for 31 years.

Your parents will not lose the right of way. It doesn’t matter if they don’t use it for the next 50 years, a right-of-way noted in the deeds is only extinguished if both properties come into common ownership or if the two parties mutually agree. The latter seems unlikely. It doesn’t matter that the neighbour fences part of it off, they still have the right over it because offence can easily be removed if the court orders it.

There is no easy way of resolving the issue of where the boundary should be and if neither party can agree, then it is a case of the matter going before a judge and the court determining the boundary. Each party could have their own surveyor who would make representations to the court and the court would decide the issue based upon the information in front of it.

Alternatively, try to avoid court and get perhaps a different surveyor to decide the issue and both parties agree on being bound by the surveyor’s decision.

Please note that if there is a right-of-way over this pathway, then the right-of-way cannot be divided whereby part of the pathway belongs to the neighbour and part pathway belongs to your parents. The issue here seems to be the extent of the pathway which the neighbour seems to be saying is narrower than it is.

Ultimately, as is always the case, if there is no meeting of minds, whether that is with the help of a boundary surveyor or not, the only option open is to take the matter to court.

Your parents might want to check all the house insurances to see if they have legal expenses cover that would pay for the legal costs of dealing with this. If they have, then pass this over to the insurance company to deal with.

Can I clarify anything for you?

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Best wishes