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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 32218
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I need to know about Easements, London, Nothing yet we just

Customer Question

I need to know about Easements
JA: Where is this? It matters because laws vary by location.
Customer: London
JA: What steps have been taken so far?
Customer: Nothing yet we just need to know our rights as a neighbour has sent a legal letter
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: Only rights of ways aka easements and historical rights if a pathway has been used for 50 yearsa
Submitted: 13 days ago.
Category: Law
Expert:  Joshua replied 13 days ago.

Hello and thank you for your question. My name is ***** ***** I will be very pleased to assist you. I'm a practising lawyer in England with over 15 years’ experience. Please be aware that although I will endeavour to reply to you promptly, I am also in full time private practice and so I may not be available to respond immediately and it may also take me a few minutes to prepare a reply. The site will notify you as soon as I respond. I look forward to working with you to answer your question fully.

Expert:  Joshua replied 13 days ago.

how may I assist in relation to the above please? I believe you have a query in relation to an old easement?

Customer: replied 13 days ago.
Hello!
Hello
I have an enquiry about an Easement, My father lives in a flat and has done so since the 1970's. There is a side access to the garden, which has always been there and we have always used. Recently the new partner of the neighbour who lives below my father, has an issue with us accessing the garden via the side entrance. We are the sole owner of the garden, they have the driveway that we have always walked across to use the side entrance, there has never been an issue until recently.
There is nothing stated in the deeds about this being a right of way, but because it has always been an access point for the garden, is this an automatic right of way as its historically always been used?
Any advise would be greatly appreciated... I can send an image of the front of the property so it maybe easier to see what I mean?
Expert:  Joshua replied 13 days ago.

thank you. Have you looked at your father's lease to see if there is new provision as regards ***** ***** to access the garden? Naturally, mistakes are made in drafting of leases but it would be surprising and clearly in error if there was no right of way granted to access a garden that was demised under the terms of the lease. For the avoidance of doubt, a lease is a document that will be referred to in the title and the terms of the lease will not be set out in full in the title deed itself

Customer: replied 13 days ago.
Thanks for getting back to me, there is nothing in the lease about right of way, there is just that this is the access to the garden and the only way to access it is to walk across this driveway. This property was once a whole house and the flats were divided up in I assume the 50's and 60's.... When my father purchased the property nearly 50 years ago he ensured he has the sole use of the garden, which is stated on the lease and to access this garden there is the side entrance. The dispute has only arisen recently. So what I am asking is because there has been a historical use of this entrance from us (residents of the garden flat) to acces the garden, is there an automatic easement as this has always been the way?
Expert:  Joshua replied 13 days ago.

thank you. If there is nothing in the lease as regards ***** ***** in this respect as you say, then your father will need to consider falling back on his so-called prescriptive right under the prescription act to continue to exercise a right of way in this regard.

In order to claim a right under the prescription act, he must be able to show that for a continuous period of 20 years or more, he has exercise the right of way over a given area to access his garden and without permission, payment or secrecy of the landowner.

Providing he can demonstrate all of these elements, then he can consider swearing statutory declaration as regards ***** ***** he has exercised and then subsequently applying to register this as a formal right as against the landowner's title. Naturally, the landowner can dispute any statement made and where possible, if he is able to obtain statements from other individuals who may be able to provide corroborating statements or alternatively, where he has any other evidence in support of his claims though I suspect this may be unlikely, such supporting evidence can be helpful if the landowner brings a dispute to the property tribunal in this regard.

However, one thing that is presumably in your father's interests is that he can show that he has been demised the garden and by extension, it will not be a difficult argument to make that he has actually accessed the garden in practice and from what you say, this is only possible in one particular way.

Customer: replied 13 days ago.
Thank you so much.... This is not the only access to the garden as there are French doors to the back of my fathers flat, but we have used the side entrance for almost 50 years almost daily as its suitable for taking out garden waste etc... How would we get "statutory declaration as regards ***** ***** he has exercised and then subsequently applying to register this as a formal right as against the landowner's title"??
Expert:  Joshua replied 13 days ago.

in order to register a prescriptive right, you will ordinarily need to speak to a local solicitor. The land registry have produced a pro forma statement of truth that can be used in this respect though it is not obligatory to use this form :

https://www.gov.uk/government/publications/prescriptive-easements-statement-of-truth-st4

Customer: replied 13 days ago.
Honestly thank you so much, if you have any recommendations for any reasonably priced easement lawyers in the NW London area I would really appreciate it :-)
Expert:  Joshua replied 13 days ago.

unfortunately, I cannot make specific recommendations that you can use the following tool to source solicitors in your local area:

https://solicitors.lawsociety.org.uk/

You can normally conduct some initial due diligence on any particular firm by looking at feedback which is in many cases often available via google and elsewhere online.

Customer: replied 13 days ago.
I appreciate all of your help, thank you!
Expert:  Joshua replied 13 days ago.

I'm glad the above answers all your questions for now. If you have any follow up questions please revert to me.

Expert:  Joshua replied 12 days ago.

I hope I was able to answer your question. If you would like to ask me another question in the future, you can add me as a favourite Expert. You'll have the option to do that on your "My Questions" page if you choose to rate our interaction or you can request me by name if you wish. Thank you again for visiting JustAnswer and see you again in the future I hope.