Prescriptive Right of Way Across Neighbour Driveway

[BluebellH]

Hello

I would be grateful for some guidance regarding prescriptive easements. I believe we have an established Prescriptive Right of Access across our neighbour’s driveway established over 44 years of continuing use, and I would like to formalise this to become a Prescriptive Easement as our new neighbour is trying to block our access.

My family has lived in our home for 44 years and we own it freehold. We have a small strip of land at the side of our home, extending from under the eaves, which can only be reached across the next door neighbours driveway. We have accessed this strip of our land regularly for placing our refuse bins, and storing items, for the entire time we have lived here and we have accessed across our neighbours driveway to maintain our boundary walls, maintain the side our our house which directly abuts our neighbours’ drive, clean our windows, and maintain our roof over that time. We have done this without secrecy, without force and without permission for 44 years now. The only pause in this activity (accessing our strip for storage and refuse) by us was for 9 months in the last year when our new neighbours, who moved in in June 23, dug up and resurfaced their entire driveway and reconstructed their garage at the end of it and there were gasworks on our road and pavement, so access was limited for storing our property and refuse on our strip of land, although we continued to access the drive to clean our windows regularly and rebuilt our boundary wall and repointed our home within that time. Our new neighbours are furious that we have access even though we do not disturb them and never abuse the access, and when we advised them that we have a prescriptive right of way across their driveway as we have needed access across it for the past 44 years, they responded that we can have access across their driveway to our land only with their express permission , and say we must pay them an indemnity against damaging their driveway when we do so. We ignored this and have continued to access our land, place our refuse on our strip and maintain our home without disturbing them, but without once seeking permission. Our neighbours have now planted a hedge in front of our strip of land to block us accessing it, and have begun to block access to our refuse bins by pinning our bins in with their car.

We wish to formalise our prescriptive right of way as a prescriptive easement. We have close neighbours of 40 years who have signed letters for us to confirm our boundary has never changed and confirm that they are aware we have regularly accessed across our next door neighbours’ driveway for purposes mentioned above. We also have dated photographs of our home, some more than 20 years old, showing our property on our strip of land, which i hope proves our continuous behaviour over this time.

Will we be able to gain a prescriptive easement across our neighbours’ dire way considering the proof we have of decades of continued access without permission, force or secrecy? As stated above- our current neighbours have never once stated we could go ahead and continue in this way, they were firm and said in writing that we must have their permission to gain access, so my understanding is that our right of access qualifies as a prescriptive easement rather than a licence. We are certain our new neighbours will object when we apply for a prescriptive easement and the matter will go to tribunal- do they have any valid objection to our claim for a prescriptive easement and can they block it?

I would be very grateful for guidance in this matter!

[R0b]

Hi,

From what you describe, this sounds like it will almost certainly become a legal dispute which is what you are saying is potentially going to happen. On that basis, it would b sensible to engage a property litigation lawyer to obtain some initial advice and get an opinion on the prospects of success. It's not for us to be able to determine if the neighbour has a valid objection but if they are simply objecting now when you have had 44 years of continuous use, then the immediate answer is probably not, without something more being offered.

When you make your application, and assuming the neighbours do object you can either withdraw, seek a settlement or go to the tribunal. Property disputes can get nasty and expensive especially where neighbours are involved so you may want to try and see if you can settle your differences without the need to go to the tribunal and that may be worthwhile considering after you have had some legal advice because if there are strong prospects of your continuous use being recognised as an easement, then you can use that to strengthen your discussions with your neighbour.

Of course, sometimes people will not listen to anything and are prepared to take it all the way whatever the cost so that is something you need to bear in mind from the outset. If you have legal expenses insurance then you may be able to use that for any tribunal representation but the insurance will only cover if there is more than a 50% chance of success, and that's where an advice or opinion letter would be handy also as evidence of success.

[BluebellH]

Thank you for your advice Rob! If I understand correctly, I don’t think that gaining the prescriptive easement across the neighbouring driveway issued by Land Registry is related to potential legal action in the courts , but of course legal action could flow from this matter (ie, if there’s a prescriptive easement issued and our neighbour continues to try to physically obstruct our access, then legal action against him would be necessary). Sadly I don’t think reasoning with this person is a possibility, we have tried in the past, and he ignores all written communication, is spiteful and will do anything he can do disturb and upset our family). So I think we will just have to proceed with the application for the prescriptive easement .very grateful for your time and thoughts!