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Nicola-mod, Moderator
Category: Property Law
Satisfied Customers: 21
Experience:  Moderator
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35 year lease taken on Land. property built on it. Lease taken

Customer Question

35 year lease taken on Land. property built on it. Lease taken on by other company after 11 years. [overriding lease] lease now concluded. I purchased property leasehold 999 year lease. property owner next door says he has used access from land rear of property for 20 plus years and is claiming prescriptive rights. He has put 6 cars on the land and will not move them so that I can demolish to property [hazardous waste in property so site must be secured] until I give him route to his garage door. I secured the land but both locks were cut through on the gates. He was a tenant at his property from 1993 until he purchased it in 2004.As the leaseholders were tenants on my property and i do not own the freehold can he apply for prescriptive rights through the courts, and can he claim a 20 year right when he did not own his property until 2004. I cannot start work on the site. Desperate situation.
Submitted: 4 years ago.
Category: Property Law
Expert:  James Mather replied 4 years ago.
Please bear with me this weekend because I will be online and off-line.
Did you report the cutting of the locks to the police? Why not?
Ignoring his ownership, how long has he used this access for?
Is there any proof of this?
Is he wanting the right to park or it is he simply wanting to use the land to access part of his property?
When you bought the land, were you aware that he had been using it?
Did the seller disclose it to you?
Customer: replied 4 years ago.

reported to police have incident number. He says 30 years of using access? He will not supply any evidence. He wants a legal route of access to his garage. [too small for garage used to store supplies to shop] The land at the rear had been unsecured as last tenants went into liquidation and many cars parked there. gave notice to all cars to move off, all went except this owner, Seller assured me no access rights granted.[true] before purchase. I was told that prescriptive rights cannot be claimed against tenants, only freehold properties ? is this right. I need to know how strong or weak my position is to assess the decisions. ie, do I give him what he wants a route to his garage and hope he will not try to park there as well or will he exploit me and start asking for parking which I cannot do as he lives with his large extended family at the premises and they have at least 6 cars. I cannot afford a legal dispute but without the land at the rear I cannot develop the land . My business is at stake as I have borrowed money to purchase,and if I cannot get onto my own land to demolish and build because of his cars taking up the land I need for plant, materials, my own vehicles. etc.

Expert:  James Mather replied 4 years ago.
Thank you. I would press the police with regard to cutting the locks because however you dress it up it is criminal damage. I would want him prosecuted.I would put more locks on.
If he has indeed use the access for more than 20 years, he has acquired a prescriptive easement and can apply to the court to have the easement registered.
Meanwhile, he is not allowed to park on this land.
You can apply to court for an injunction to compel him to remove the cars. My suggestion would be to get a solicitor to write to him telling him that it unless he gets the cars moved within 48 hours, you will apply to court for an injunction and legal costs to compel him to remove them.
Even if he has an easement he is not allowed to block that access.
If he is going to apply to court for a formal easement is going to have to come up with some proof of more than 20 years use. To counter that, you are going to have to come up with some evidence from neighbours or the previous owner that he has not had 20 years use.
If the previous owner granted him consent to use the access, or objected within a 20 year period, then he does not acquire an easement because to acquire an easement under the prescription act, he must use it without consent or objection.
You need to check your insurance to see if you have legal expenses cover which would cover the legal costs of this litigation.
As part of the precontract enquiries the seller is required to disclose any rights, enjoyed by anyone else, over the land. I assume that you used solicitors and went through the usual process and that the solicitor did all those enquiries.
You need to look at those replies to the enquiries to see what the seller said and of the seller did not disclose this, you have a claim against the seller.
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Expert:  Nicola-mod replied 4 years ago.

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