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Remus2004, Barrister
Category: Property Law
Satisfied Customers: 2460
Experience:  Over 5 years in practice.
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My neighbour has just built a wall across my back gate that

Customer Question

My neighbour has just built a wall across my back gate that opens out onto to my right of way which is granted by deed. He acknowledges the right of way exists but asserts that it has been extinguished due to abandonment. I have sent him a copy of my deeds and his deeds, all of which show the right of way. He does not own any of the land which constitutes the right of way as his two smaller parcels of land also only have the benefit of the right of way by deed as I do. I have told him that this type of right of way cannot be extinguished in the way he assets. I have explained the only two ways that this type of right of way can be extinguished. I have explained to him that non use does not mean that it has been abandoned or extinguished. He said the previous owners of my property built a wall exactly where he has just built a wall and that act is an act of abandonment. I have told him it is not and besides he cannot simply assert something and not establish its truth.
He said he has built this new wall to force me to get a lawyer involved. He believes the right of way has been extinguished. His recent actions would indicate that his plan B In the event that the right of way has not been extinguished is that he has a claim of adverse possession of the right of way which is essentially a passageway to the rear of my property. Can he adversely possess a right of way which is granted by deed and is still registered as such on his deeds and mine respectively?What should I do about the wall? It’s a crude cheap breeze block obstruction. I want to knock it down. Am I within my rights to do so?In my view we both have a duty to maintain the right of way in terms of keeping it clear and in good repair. He has done neither in 30 years. I bought the property 1 year ago. I want to clean it up and keep it in good repair and add some lighting to it as it is a very dark passageway.I used the right of way a lot initially because my property needed major refurbishment. I used is as best I could despite him littering the ground with all sorts of dangerous junk deliberately placed to obstruct me. I brought my larger pieces of furniture through the right of way, my garden was landscaped using the right of way, the fencers used the right of way, my builder used the right of way. I now need to use the right of way for my bike etc. The right of way leads to my garden.Without going legal, how can I convince him he is committing an unlawful interference. I’ve tried being nice and I’ve shown him all the evidence. He has simple made assertion in the hope that I will give up. I will not give up.Will I ultimately have to go legal?
Submitted: 6 months ago.
Category: Property Law
Expert:  F E Smith replied 6 months ago.

Hello for clarification - did he tell you hes been there 30 years?

and you have lived there for 1 year?