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wingrovebuyer, Senior Solicitor
Category: Property Law
Satisfied Customers: 737
Experience:  Bachelor of Laws (Honours); PG Diploma in Law; Member of ALA; 9 years' experience
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We are trying to build a house on a plot of land which our

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We are trying to build a house on a plot of land which our neighbor has a right a way to their back garden.

They have "private right of way" and it is clearly specified in their deeds.

"Together with a right of way at all times and for all reasonable
purposes for the Purchaser and his successors in title the owners or
occupiers for the time being of the property hereby conveyed or any
part thereof and their respective servants and licensees with or
without vehicles to and from the property hereby conveyed over and
along that part of the passageway coloured green on the said plan
subject to the Purchaser paying a fair proportion of the cost of
maintenance of the said passageway."

some parts of the right of way about 3m and some parts 2.5m wide.
We are building a house right against the "right of way" area.

The neighbors house is topical Victorian terrace, and the garden is about 4.5m wide 6m long. We believe they are not using the right of way access at all. But the neighbor claims they need to use it to move their garden equipment and bikes etc.

We would imagine when the building work starts, we will try as much as possible not to block this right of way. But we are sure sometimes [perhaps 1-2 day], they might not have access for the right of way due the building work, i.e. digging for the foundations.

Question1: Can our neighbor get injunction against the building work? [they are telling us they are going to, if we build our house next door. . . they are very against it..]
if so, how much interruption is enough to get an injunction? A few hours of obstruction? or a few days?

I have read somewhere, they need to write a letter to give us 7 days notice to remove all the obstruction.

Dose this mean we can obstruct the right of way for a few days and we are safe?

Question2. Can we ask the court to suspend the ROW while the work going on due to the health and safety?

Many thanks

wingrovebuyer :

Hello. The neighbours could seek to injunct you from obstructing their right of way, and so it is best to ensure that you instruct your builders not obstruct it, if possible. If that isn't possible, the neighbours might follow through with their threat. However, a recent court case has changed how the courts will approach injunction applications relating to the interference with rights such as easements. In effect, if there is a non material interference, they will probably not grant an injunction, but award damages instead. If there is no material interference, the damages are likely to be small.


Thank you for the reply, we thought the injunction is automatically happens and then we go to the court next.


So the court need to look at the case first, then they either serve the injunction or the damages? Sorry we are not very familiar with these.


could you describe the process of our neighbor asking the injunction?


and how much is it likely to cost us if they do ? for the legal and court fees? and the damages?

Hello. Yes, they'd apply for an injunction and the court will consider it without you having any say at that stage. However, the court will now give greater thought to whether or not damages would be more appropriate than an injunction. In this case, I'd say they would think they are. If the neighbours take this action, you would need to defend the claim, and ideally you need a solicitor and a barrister. However, I think you could probably appear at court yourself, to explain that the interference is immaterial. You'd have to pay around £5000 plus vat if you used lawyers.
The injunction process is really just a simple application to court, asking them for an injunction, in essence.
Customer: replied 3 years ago.

Do we need to pay for the neighbors solicitor when the court decide on the damages? also how about the court fee?


What is the "no material interference" ?


Also could you replay to Question2. Can we ask the court to suspend the ROW while the work going on due to the health and safety?


thank you very much

Hello. No, the court will not "suspend" the easement. The court will decide on costs. Even if they award damages to your neighbours, they may feel you haven't really done anything wrong, and they might recognise that your neighbours were being deliberately awkward because they're annoyed at your plans. "Material interference" is a question of degree. If the neighbours rarely use the right, and it's only blocked for a few days, that would be an interference, but only an immaterial one. So the damages won't be much.
Customer: replied 3 years ago.

Thank you for the reply. sorry the last question, is this case, do we need to pay their solicitors/lawyers fee then?

Sorry, I can't say. As above, the court will decide on that. However, I think your neighbours are being unreasonable and pedantic, and I think the court would agree. So, they may award costs against you, in your favour or leave each party to pay their own costs. It's up to them, based on the conduct of the parties.
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