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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 16928
Experience:  I have been practising for 30 years.
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Our garden backs on to a right of way which is listed in our

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Our garden backs on to a right of way which is listed in our deeds and noted on the plan in our deeds. We believe that the properties bordering on the other side of the right of way also has the right to use it. The right of way has been in place from approx 1911 when the houses were built.
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: The people on the other side of the right of way have taken down their border wall, blocked off the right of way and are using it as an extension of their Gardens. We believe this action is illegal and we are now unable to keep our border wall in good order and unable to use the walkway. They also have put a high fence fixed to the border wall on our side of the right of way.
JA: Where is the house located?
Customer: In Cliftonville, Thanet CT92JE
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No that is all thank you

Welcome to Just Answer.

I will be happy to assist with your question today. I need sometime to consider this and compose a response. There is NO need to wait online because you will get an email when I respond. Sometimes it will be minutes, sometimes longer.

I apologise for any unavoidable delay, but rest assured I have not forgotten your question.

so no one can now use this right of way?

do you know if they have recently moved in?

Customer: replied 6 days ago.
that is correct no one can use the right of way. We have two houses that back on to the right of way behind our property.***** has only recently moved in and we are not sure when 49 moved in but they both have taken over the right of way so as to not allow any access.

It seems to be the season for everyone extending their garden at the back of property, over the right-of-way and into some of the piece of land.

Before the right-of-way is said to be obstructed, the obstruction must be “substantial”

What is substantial depends on the facts.

Just because someone may have a right-of-way over a large area for example doesn’t mean that they have the right to wander into every single corner of it aimlessly “just because they can”. For example in the was a car parked in the corner but it didn’t really obstruct the right-of-way, even though they may have the right of way over the area, it would not be substantially obstructed.

If on the other hand there was a car parked in a right-of-way which was 12 feet wide, and it was pedestrian access it wouldn’t be a substantial obstruction but it would be if it was for vehicle access.

The question in respect of gates is common.

A gate which is unlocked for pedestrian access is unlikely to be a substantial obstruction. For vehicle access it is because you have to get in and out of the vehicle to go through it. Further, pedestrian or vehicle, it’s very difficult to compel someone to lock the gate if they simply leave it open.

If the gate is locked, even if key is provided or even if it is a combination lock, you can’t stop the combination being given out to the world and its mother and it is a substantial obstruction.

I don’t how this affects your use of the right-of-way but if it does, then you would be entitled to apply to court for an injunction to make them stop doing whatever it is that they are doing.

You may find that a strongly worded letter from a solicitor threatening a court application and an application for costs, may focus the mind without actually the need to get to court.

Check your house insurance to see if you have legal expenses cover that would pay for the legal cost of taking this to court. Unlikely, but do check.

I am glad to help.

Hopefully, I have answered your query in a way that is simple and easy to understand.

I would be more than happy to clarify anything else for you. In the meantime, thank you once again for using our services.

Please note that my answer is based strictly on the information that you have given me. If you have not given me all the information, then my answer may be incomplete or wrong.

I am happy to answer any specific points arising from this.

If you still need any points clarifying, I will be happy to reply because the thread does not close. In fact, it remains open indefinitely.

I am always happy to answer any questions you have if you start your question with, “ For FES only”

Thank you.

Best wishes.

FES

Customer: replied 6 days ago.
FOR FEZ only.
Thank you for information
May I also tell you some more information that could be useful. The right of way is three foot wide and has brick nine inch wide walls which border each of the properties either side at the end of their gardens. It is stated on our deeds that it is only for access to all the properties by foot only.
The gentleman in no 49, Warwick Road has fixed a heavy substantial fence to the top of our border wall with electric cables running through it and it is damaging our wall. Is this legal or can we remove it or ask him to remove it. Thanks.

Anything which he attaches to your wall is trespass and you can compel him to remove it. That is unless it’s a party/jointly owned wall in which case he would be entitled to attach things to his side.

F E Smith and 3 other Law Specialists are ready to help you
Customer: replied 6 days ago.
Thanks very much for your advice. It was all very helpful.
Customer: replied 6 days ago.
We will call you if anything else arises with this problem. We need to think about it thanks

No problem. I am glad to help. Kind regards.