advice needed on easements and rights of way

[des8]

Re: advice needed on easements and rights of way

No it doesn't mean that you have to take down the gate.
The case referred to in post 2 indicates that an unlocked gate is not a substantial interference.
The right only allows for passage across the land to the garage/parking space.
The presence of an alternative route will not make any difference in this case

IMO at this point you do not want to get too tied up in the legalities.
I suspect the neighbour has instructed the solicitor to write the letter, expecting you to roll over and do his bidding.
Just write back; quote the wording of the easement, refer to Pettey v Parsons (1914 and ask him to tell his client that he does not have permission to park on the right of way.
Unless your neighbour has deep pockets he will not want to get involved any further

[Openlaw15]

Re: advice needed on easements and rights of way

So does that mean I should give up and take down the gate thats been there for over 30 years because the guy that moved in 2 years ago doesn't like it?
How do I protect my property and my own right of way?
Do I have any rights at all?

Technically, and I mean technically with a small 't,' there are cases that support the view that a gate can be used by the owner to protect their land against the DT. The problem is that the DT has the 'self help' remedy to take down the gate without damaging it. This will then lead to a likely claim by you of criminal damage or trespass. This is tricky area and easement law is notorious for the grey area that it really is.

In any event, the DT has to prove there is an easement attached to the land. This is the key thing about an easement and that is that the right is attached to the land and not any personal right. On your facts the land register indicates a 'right of way' via deed (legal interest so normally water tight). However the register terms do not explicitly express the term 'easement,' in any event the normal procedure is to prove there is a DT, would need to satisfy the criteria for easements. Where the DT proves an easement, this person may regard the gate as substantial inference with the land and affecting their use to the easement.

[amphiprion]

Re: advice needed on easements and rights of way

Thanks des8.
I have already responded giving the reasons for the presence of the gate and explaining that it has been present for over 30 yrs. I didn't quote any case law but wish I had now.
I think I've made my position clear to them. I will just have to wait and see what they come back with!

[Openlaw15]

Re: advice needed on easements and rights of way

Hi and welcome

As a matter of interest did this neighbour first do the neighbourly thing and speak to you first, or was it straight to the solicitor?

If he has free access through the gate (ie he has a key to the lock if it is lockable) there is no obstruction to his right of way and he can do one!
If the gatepost interferes with the right of access the position might be slightly different.
You could argue that as the original post was put in at the request of the then dominant owner, the right of access was amended to take that into account, and so your reinstating of the post was only returning things to the status quo.

It's early(ish) and I'm busy today, but I'll look later for the authorities for above comments
Meanwhile others may be along

Already had a quick look and there's a difference between a locked gate and an unlocked gate!

Pettey v Parsons (1914)
The defendant sold land adjoining his own to the plaintiff, who covenanted to construct a road on that land, along which the defendant was to have a right of way. The plaintiff constructed the road, making it 10 feet wide, and placed railings along part of one side of the road, and a gate across the road, such that the defendant could not in fact use the road without going through the gate. The defendant responded immediately by removing the railing and the gate. The Court held that the private right of way had not been substantially interfered with by the erection of the railings and gate. The plaintiff was entitled to erect a gate so long as it was kept open in business hours and never locked.


Guest Estates Ltd v Milner's Safes Ltd (1911)
The plaintiff tenant had a right of way that was blocked by the defendant landlord's locking of a gate. The defendants contended that they were entitled to lock the gates if the plaintiff was supplied with sufficient keys. The Court disagreed. In the opinion of the Court, the plaintiff had a free right of passage and it was an obstruction to keep the gate locked and it was no answer to say that keys would be supplied. It was not difficult to appreciate the inconvenience if the plaintiff were obliged to carry keys; it was impractical.

Has the easement been registered with land registry?
Do you have a copy of the original permission?

These cases are a 100 years old so things have long changed since then. Here's one from 2014, citing Pettey et al that states that a gate can be used to protect the ST land: Bradley and another v Heslin and another [2014] EWHC 3267. The case also states that the gate can be closed where the ST is away from the property or can lock the gate at unsociable hours: Bradley [2014]. This case however relates to a DT putting a gate on the ST, so the lawyer will argue that this case is distinguished from the OP's problem, which this a gate used by ST against DT.

However, at para. 67, Bradley confirms that even an open gate will result in an injunction unless there are suitable alternatives for the DT. See para. 67 cases for details of the exceptions to the injunction rule.

Bradley at para. 67:

"67. The construction of gates across a driveway can often be a substantial interference with the rights of those entitled to use it. Where there is a right of way and it is gated by the owner of the servient tenement it will frequently be the case that the application of the principles set out in Pettey v Parsons [1914] 2 Ch 662 and the approach suggested by Blackburne J in B&Q plc v Liverpool and Lancashire Properties (2000) 81 P&CR 246 will lead to an injunction ordering the removal of the gate, unless some means of reducing the inconvenience to something less than substantial can be found (as was done in Siggery v Bell [2007] EWHC 2167 or Wall v Collins [2009] EWHC 2100)."

http://www.bailii.org/ew/cases/EWHC/Ch/2014/3267.html

[amphiprion]

Re: advice needed on easements and rights of way

Hi openlaw15 thanks again for your response. Sorry what is a DT ?
I used the term easement because I thought that is what it was. As you said the term easement is not used on the paperwork. So does that mean it is a private right of way?
What is the difference and how would that affect my situation?
My apologies for asking but your last response has me completely lost!

[Openlaw15]

Re: advice needed on easements and rights of way

Hi openlaw15 thanks again for your response. Sorry what is a DT ?
I used the term easement because I thought that is what it was. As you said the term easement is not used on the paperwork. So does that mean it is a private right of way?
What is the difference and how would that affect my situation?
My apologies for asking but your last response has me completely lost!

DT = Dominant Tenement; ST = Servient Tenement. Your land is the servient tenement (ST) because your detriment is the other person using your land. The DT is the one who benefits from the right of way on your land.

[amphiprion]

Re: advice needed on easements and rights of way

Openlaw15.
Thanks again for your input. But I need constructive advice.
The original gate was put there over 30 years ago by a dominant owner with informal permission from the servient owner at that time. No one has ever asked it to be removed until now.
I HAVE NOT JUST INSTALLED IT.
I approached the neighbour 2 weeks ago and he agreed to the post going back in, in front of a witness.
Now he is stating that he doesnt remember this conversation taking place.
He chose to buy the house knowing that a gate was present and that the function of a gate is to open and close
Surely a court would see his behaviour as unreasonable.

[Openlaw15]

Re: advice needed on easements and rights of way

Openlaw15.
Thanks again for your input. But I need constructive advice.
The original gate was put there over 30 years ago by a dominant owner with informal permission from the servient owner at that time. No one has ever asked it to be removed until now.
I HAVE NOT JUST INSTALLED IT.
I approached the neighbour 2 weeks ago and he agreed to the post going back in, in front of a witness.
Now he is stating that he doesnt remember this conversation taking place.
He chose to buy the house knowing that a gate was present and that the function of a gate is to open and close
Surely a court would see his behaviour as unreasonable.

Look at case Siggery, 2007, for guidance. It's relatively short: http://www.bailii.org/ew/cases/EWHC/Ch/2007/2167.html Look also at this 2009 case for guidance, it's a long case unfortunately.

Here's some useful guidance in Siggery for you to think about, its a reasonability test of sorts.

"11. A right of way benefits a piece of land and in the general run of things where a right of way benefits a piece of land it benefits the whole of the land and each part of the land. In principle, therefore, this means that the owner of the land with the benefit of a right of way is entitled to choose from which part of his land to access the way.

12.The question was considered by the Court of Appeal in Pettey v Parsons [1914] 2 Ch 653. Lord Cozens-Hardy, the Master of the Rolls, referred to an earlier case called Cooke v Ingram in which Wright J pointed out that in that case there was nothing which expressly limited the grantee of the right to one line of access or to access only at the points where his land actually adjoined the new way. That was a case in which it was proposed to erect a fence along the line of a private right of way but the owner of the way had offered to put up a gate in the fence that was proposed to be erected. That offer was held to be a reasonable one to which the owner entitled to the right of way could not reasonably object. Swinfen Eady LJ said at page 667:


"The other question refers to fencing the side of the little triangular piece of land. It is a question of construction in a deed granting a right of way whether the way that is granted is a way so that the grantee may open gates, or means of access to the way, at any point of his frontage, or whether it is merely a way between two points, a right to pass over the road, and is limited to the modes of access to the road existing at the date of the grant. In each case it is a question of construction. Assuming in favour of the defendant that he is entitled to open new means of access to this roadway, he is not entitled to have it continuously unfenced along the whole of the line so that at every inch of the way he may pass on to it at any times he pleases."

13.Pickford LJ said at page 669:


"In the absence of authority I am certainly not disposed to accept the contention that such an obligation as that is laid upon the servient tenement. I think the obligation is that, assuming the right of access from each part of the land from which access is required to any part of the way, such access shall be given as will be reasonable. It is obviously difficult to explain, but it is an inevitable word, I think. It means such access as will give reasonable opportunity for the exercise of the right of way, or, to put it in another way, such access should be given as will not be a derogation from the grant of the right of way."

14. If it is a question of reasonableness then that is in substance the same question as whether there is an interference with the convenient exercise of the right of way. This means, in my judgment, that I must look at the position as a whole, that is to say, with the choices being either that the claimants need to pass through two gates in order to access their land from Filsham Drive or, alternatively, they have to pass through one gate and then onto their land through a gap where the fence would have been.

15. On the question of reasonableness I must also, I think, take into account the reasons why the defendants wish to maintain the fence on the northern side of the track. Those reasons are essentially twofold. The first is that it is their boundary and therefore they consider that they are entitled to fence it and, secondly, they have spent the money on buying and now erecting the fence. So far as the first of those reasons is concerned, where a boundary of ownership coincides with the boundary of a right of way then the owner does not have the absolute right to fence the boundary, it all depends on what is reasonable as regards the exercise of the right of way by the person entitled to it. As regards the second reason, it is true that some money will have been spent on the erection of the fence, but in the general scheme of things I do not consider that the cost of supply and erection of a fence is a sufficiently weighty matter. In my judgment, two gates on this right of way would be a substantial interference and the only means of saving the two gates is, in my judgment, for a portion of the northern fence to be demolished where it adjoins the back garden of number 31 and the small portion of number 33.

16. I conclude, therefore, that this is a case in which even the two gate solution as proposed by the defendants would still amount to an actionable interference with a right of way, but that the best means of removing the nuisance is for the two gates to remain in place but for that portion of the northern fence that I have described to be demolished."

This case to me appears to say if there is no suitable alternative to the SD use of a gate then it's the best remedy if even a nuisance to the DT who is using the 'right of way.'

[amphiprion]

Re: advice needed on easements and rights of way

Thanks openlaw. I'll need some time to digest this.

[Diana M]

Re: advice needed on easements and rights of way

I've been following this thread all day but not posted because I have nothing legal to add since 'easements' are not within my formal knowledge.

However I do own a country cottage which gives me 'right of way' to access a (water) well on my neighbour's land which was established in the 17th (maybe 16th) century when maybe these things were necessary.

I've never needed to do that because I have 'running hot and cold' water courtesy of modern methods.

We discussed it once amicably (as you do with neighbours) only to be told that the 'well' is now 200 feet under their garage/office/gymnasium/conversion thingy so my access to a bucket of underground water would be a tad difficult if needed in a hurry.

What I can see on this thread is a situation where a previous (next door) owner was able to access their property (via a legal right of way or whatever it's called) with their caravan but unable to reverse out again the next day. Obviously that begs the question did the caravan suddenly get bigger overnight or was this a case of inadequate reversing skills?

Then I read that the current neighbour tried to intimidate the OP by driving at them until they jumped out of the way in fear of their life.

What has not been said (possibly because it's not relevant legally speaking) is whether there are any pets/children issues involved which would want either/both property owners to want a gate so that none of them (pets/children) get run over if they stray onto the road.

So that leads to two questions (for me).

(a) does 'right of way' need to be measurement specific since a horse may get through a gap which a Range Rover or any other 4 x 4 can't navigate even if driven by Jeremy Clarkson?

and

(b) is this not an issue which should be resolved by a 'charm offensive' with the neighbour without the need to involve lawyers?

I should add that I have absolutely no idea whether this rogue gate post has the legal right to be there but would moving it a few inches/feet to the left/right make all the difference to neighbour harmony?

Di

[amphiprion]

Re: advice needed on easements and rights of way

Hi Diana.
Thanks for your comments.
Yes we do have pets, cats and a dog, which are part of my concern. I think the guy is quite simply the bully type. Im sure he knows the rules relating to the use of my drive but simply feels he has to keep pushing the boundaries to get more out of it. Ive always taken my responsibilities towards him seriously I always warn my visitors not to park there and I can honestly say he has never had to ask me to move a car so he can get in or out. But it has been a regular problem for me. And they are so awkward about it.
Im always polite and friendly about it but almost always experience some sort of abuse from his visitors who act as if i have no right to ask them to move their cars. Often I will just leave it and wait for them to go to avoid an altercation.
His parking area is small and if he ever needs to access his garage he reverses his car back on to the right of way and leaves it there, sometimes for hours which means we have to squeeze by it in order to walk out of the rear of our property.
Re the incidents of him driving at us that was just the worst case. We often have to weed the drive in summer and if he arrives while we are working he refuses to wait while we move tools etc out of the way and simply drives over them, despite me making it obvious im walking over to move them for him.
The gate cant really be moved. On one side there is a raised manhole cover sticking out 1foot into the drive and on the other there is an unsupported drain drain with a 2ft area which cant be driven on as it would damage the drains and already has in the past. The right of way at this point is only 11ft wide and the drains and manhole are immovable objects which effectively cut it down to 8ft.
So if the gate was moved 1ft either way damage would be likely be caused either to the vehicle or to the drains.
Ive explained this to him and he simply states his insurance will cover any damage he causes.
And re the caravan I think driving skills were the problem, I should have just said no in the first place the area is quite small.

[amphiprion]

Re: advice needed on easements and rights of way

Hi all,
I have just recieved a second letter from my neighbours solicitor and was wondering if anyone could offer some advice.
I suspected from the way the first letter was written that my neighbour had told his solicitor that i have just recently installed the entire gate and not just replaced to post. It would seem my suspicion was correct!
The letter states that my neighbour knew the gate had been there previously but that i had removed both the gate and the post in june or july last year! The nature of his complaint is that I have now just reinstalled both the gate and post without his agreement. He actually bought his property in july 2014 and I suspect that there must be some law or rule that if he bought the house knowing the gate to be present he has legally accepted its presence and can not now ask for it to be removed. I think either he has made a mistake with the dates he has given or his solicitor has! Either way the gate has been in situ since 2001 without interuption, and I can if required provide substantial evidence to prove it!
Can anyone enlighten me please?

[amphiprion]

Re: advice needed on easements and rights of way

Any body?

[Amethyst]

Re: advice needed on easements and rights of way

Just my thoughts and not from a legal viewpoint as it really isn't my area, but from your first post, would the gate not actually be the property of, and responsibility of your neighbour anyway, being as it was his property that obtained the original permission from the police authority to install the gate and it was up to the owner of your property to object then or in the future, and as such if he, as the gates owner, wishes to remove it, he should just remove it. You both have right of way over the land and if he is blocking your right of way regularly by allowing window cleaners and visitors to park on the right of way it should be you taking him to court - the gate shouldn't be an issue as it is his gate. Seems you reinstating his gate has annoyed him as he can't let people park there without them having to go through the gate - but without the gate he was continuously blocking the right of way - no idea if that's a valid argument though.

At some point in the perception of ownership of the gate seems to have switched - by your neighbour asking permission to use it for his caravan and then remove the post and then you replacing the post.

Is your garage / driveway at the back of this right of way as well as your neighbours ? so really the right of way should be kept clear so you can both access your garages in and out at any time ? ie not sure what you use the land for if it only leads to his garage and you have to keep it clear for that purpose anyway.

Pettey v Parsons (1914) seems to be pretty solid caselaw, but if your neighbour is angling after taking ownership of that bit of land as opposed to just utilising his right of way over it, then I think the investment of a chat with a solicitor would be worthwhile.

He actually bought his property in july 2014 and I suspect that there must be some law or rule that if he bought the house knowing the gate to be present he has legally accepted its presence and can not now ask for it to be removed.

I'm don't think there is, I haven't come across any anyway.

[des8]

Re: advice needed on easements and rights of way

As the owner of the land you are entitled to gate it as long as it does not cause a substantial interference to the right of the DT to pass and repass over the land.
As the gate is not locked IMO (for whatever that's worth) it does not cause such an interference, and its requirement for the security of children would override any insubstantial obstruction of the access.

I don't think the matter of previous ownership has much import, although it might be suasive in that the road was previously gated.