Just because the neighbour is a retired solicitor doesn’t necessarily mean that they know anything about land law and the situation here. If they did, they would probably have been a little more specific. If the gate is attached to your fence and your fence is on your property, and it has been there for 20 years or more, and has been there without consent or objection and not in secret, then they can claim an easement under the Prescription Act for it to remain in place. So provided that 20 years has been exceeded they could claim an easement. If however they asked whether it was possible, in the past, to attach the gate, and the you or your predecessor confirmed that it was okay you or your predecessor had objected, all within that 20 years, they cannot claim an easement and you are entitled to tell them to remove it and taken to court if they want and you can ask the court to award costs against them.
It seems unlikely that there was consent (unless you can prove to the contrary) and it seems unlikely that anyone is objected, in that 20 years. So let us assume that there is or that they can claim an easement for it to remain in place.
There is a doctrine of mutual benefit and burden which says that if someone has the benefit of using something, then they also have the burden of repairing it. Therefore, as the neighbour has the benefit of using the post to support the gate, they also have the burden (along with you) of contributing to the maintenance of it and if that means that the post is beyond maintenance, it would be the cost of replacement and would include the cost of any maintenance or modification required to the gate to enable it to be refitted.
If the gate is in such poor condition that it will fall apart, then you are only responsible for the cost of any work required to the gate to facilitate the new post because anything other than that would be betterment and they are responsible for it.
At this point, I would hasten to make the point that if you got into a legal argument over this, it could easily cost 10 grand with no guaranteed outcome. I have given you the middle-of-the-road answer which in my opinion is the view that a judge would take.
If you refuse to replace the gate, the neighbour is then faced with taking you to court which is going to cause the neighbour grief. You are going to have to deal with it also.
I can see no reason why could not simply unfasten the gate, replace the post (you have done your bit) and tell the neighbour that under the doctrine of mutual benefit and burden, their contribution is to rehang the gate.
I will tell you now that the cost of simply putting up a new gate is likely to be a tiny proportion of the cost of arguing over this.
What you might want to do therefore is suggest to the neighbour that a new gate is installed because the old one is rotten and that you would be willing to pay 50% of the cost of that provided the neighbour agrees to pay 50% of the post repair. If you are making any offer like this then at the top of the letter should say Without Prejudice Save as to Costs and then it cannot be produced in court as any admission of any liability. BUT if the neighbour goes to court and the court subsequently awards an amount which is not greater than 50%, the neighbour can be made to pay all the legal costs even though they had a victory of sorts.
I know this is a relatively minor issue but the costs of arguing over a minor issue and the cost of arguing over a major issue are not too dissimilar.
Check your house insurance to see if you have legal expenses cover would pay for the cost of what is, after all, a boundary dispute.
Can I clarify anything else for you? I’m happy to answer any specific points arising from this.
I’m happy to answer any specific points arising from this.
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