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Joshua, Lawyer
Category: Property Law
Satisfied Customers: 31604
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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My rear garden backs on to a river bank and land owned by

Customer Question

JA: Hi. How can I help?
Customer: My rear garden backs on to a river bank and land owned by the environment agency. We have lived in the property for over 10 years and the property itself was built in 1887. There is a rear gate which opens on to the river bank (and a public footpath). I have been informed by the environment agency that I need to remove the gate (the gate has been in place since the house was built, as far as I am aware - there used to be an outside toilet on the land). Can I claim an easement by prescription, on the basis that the gate and access have been in place and frequently used, for over 20 years?
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: no
JA: Where is the land located?
Customer: behind and abutting to my rear garden
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: Yes. The river bank has recetnyl been leased to a tennant farmer who intends to fence it off and graze sheep. It seems the request to remove the gate is resulting from this new arangement between the EA dn the tennant farmer, as we have never recevied any communication about the gate before.
Submitted: 8 days ago.
Category: Property Law
Expert:  Joshua replied 8 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 8 days ago.

from what you say, you would be able to provide evidence in relation to your use of the gate and exercising a right of way over the adjoining land for at least the last 10 years representing your ownership. What evidence could you adduce for the period before you owned the property?

Customer: replied 8 days ago.
The footings for the old outside toilet are still visible. Other than that, the gate is very old and part of the post has become embedded in a tree trunk
Expert:  Joshua replied 8 days ago.

thank you. The  gate in and of itself is not conclusive evidence that a right of way has actually been exercised over the adjoining land. To evidence this, it would be necessary to adduce evidence in the form of witness statements from for example yourself as the current owner and also from others such as previous owners or nearby neighbours who have personal knowledge of  a writing exercise within the last 20 years.

accordingly, you will need to consider how you may adduce evidence to account for the remaining 20 year period occurring before you bought the property. as above, you can consider enlisting nearby neighbours who may have knowledge dating back that far in relation to the property or if you are able to contact the previous owner or any family members of the previous owner who may have direct knowledge of the property to combine with your own to tally the requisite 20 year period.

Expert:  Joshua replied 8 days ago.

if you are able to adduce such evidence, you can consider making an application for a prescriptive right over the land.

Customer: replied 8 days ago.
Unfortunately the previous owner is dead and after he dies, the property was a rental property for some years. I live in a remote area and do not really have any neighbours. Is the existence of an outside toilet on the Environment agency land, not evedence that there needed to be a right of access?
Customer: replied 8 days ago.
Do I need to complete both forms?
Expert:  Joshua replied 8 days ago.

unfortunately, the existence of a toilet is not conclusive evidence that a right of way was exercised. It is merely indicative which is not the same thing. I wonder whether the previous owner's executor would be able to comment or whether they had any family such as children lived at the property?

In terms of an application, the AP1 form as the application form where is the ST4 form is the statement of truth to provide a witness statement as to the facts

Customer: replied 8 days ago.
OK, thanks. I think we have contact details of one of his sons who was responsible for dealing with the sale. I will investigate.
Expert:  Joshua replied 8 days ago.

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

Customer: replied 8 days ago.
HI Joshua, One further question then - if I am unable to prove access by prescription, is it my responsibility to secure the gap if the gate is removed? I am not grazing sheep on the land - I would have though it should be the Environment Agency (land owner) or tennant farmer who would need to secure the grazing area?
Expert:  Joshua replied 8 days ago.

the issue of an easement and a gate are two separate matters and subject to planning laws, it is not open to the adjoining landowner to dictate to you what forms of boundary structures you erect. There is no law that prevents you from installing a gate whether or not you have an easement though of course without an easement, you cannot legally walk through it.

If the adjoining landowner has concerns with regards ***** ***** presence of a gate, it is open to them to install their own structure on the other side of the gate blocking access if you do not have an easement

Customer: replied 8 days ago.
Expert:  Joshua replied 8 days ago.

I'm glad the above was of some assistance

Expert:  Joshua replied 7 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.