advice needed on easements and rights of way

[amphiprion]

Hi all this is my first time posting on here.
I own a house as a servient owner. My property has a slip road at the rear that allows the neighbour (dominant owner) the right to pass and repass over this road at any reasonable time to access his garage and the rear of his house.
About 6 months ago he built a new drive with parking for several cars at the front of his house and since that time he has not used the right of way. I would like to make it clear I am not looking to remove his right of way, I know that is virtually impossible.
Both houses were formerely owned by the local police authority. My nieghbours house was the first to be sold and the owner got permission from the police authority to put up an 8ft gate on the right of way for security. This will have been in the mid 1980s. The only caveat was that if any subsequent servient owner objected to the gate he would have to take it down!
I moved in to the house in 1990 and in 1998 purchased it. I did not object to the gate so it remained.
In 2001 the gate became rotten so I replaced it with a new one of the same size.
The dominant property had changed hands by then. And the new dominant owner asked permission in 2006 to store a caravan on the right of way overnight in preparation for a holiday. I gave permission.
The following day due to the size of the caravan he found he could not get it back out again. So he asked if he could take out a gate post on the condition he would replace the post when he returned from his holiday. I had no choice so gave permission. However despite several requests from myself he never replaced the post.
The house is now owned by that neighbours father in law. And a couple of weeks ago I spoke to him and told him I intended replacing the gate post. He verbally agreed that it was ok. And so I went ahead and put the post back in.
I have now revieved a letter from his solicitor telling me the gate is obstructing the right of way and I have to remove it within 7 days.
I trawled the net and can not find any useful info on this problem. I cant afford a solicitor.
Is there anyone who might be able to advise me on how I stand please?

[des8]

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?

[amphiprion]

Re: advice needed on easements and rights of way

Hi des8 and thanks for your input.
It was a bit of a strange situation really I spoke to him a week and a half before I put the post in and he agreed that I could reinstate the post. The only caveat was that he insisted that I would have to make sure it was unlocked for him in the morning so he could get to work. Which I agreed to. The silly thing is that he has now put a drive at the front of his house and has not used the right of way for about 6 months. But he now gives permission for all and sundry to use it including a window cleaner that uses it for parking while he services other houses in the neighbourhood. His visitors park on it and get aggressI've when they are asked to move so we can get out.
On the day I put the post back in he approached me and made out that he knew nothing about me putting the post back in until I had done it. He became very aggressive and threatening so I went in!
I do have a copy of the transfer deed with rough plans but they are not to scale and no measurements are given for the right of way.
The gate may make the width slightly smaller I'm not sure. I thought it was ok because I was returning it to how it was before and he had given permission.
I will say however that the way the solicitors letter reads. It looks like he may have misled the solicitor in to thinking that the gate and both posts are new and there was nothing there before!
The gate is not locked and is more of a visual detergent to unauthorised use. We have had various items of property damaged including a new car Hit by one of his visitors but he states that he is not responsible for their actions while they are on my land!

[wales01man]

Re: advice needed on easements and rights of way

Did you see the visitor damage your car if so did you do anything about it>
Regarding the gates as long as he has easy access it would not be easy for him to do much unless he is a complete ahole don't get into a verbal argument over this not worth the grief

[amphiprion]

Re: advice needed on easements and rights of way

No I didn't actually see it. It was a brand new car. I looked at it at 8am and it was fine. Around 9am he had a visit or in a white transit van or something similar. He or she only stayed a minute or two then reversed out of the drive.. went out half an hour later and found it had been scraped with traces of white paint on it. Spoke to the neighbour and he denied any knowledge of the visitor. Although I suspect that is not the truth.!
He is a ahole without a doubt. There have been a couple of time when me and my partner have been walking down the drive and instead a waiting for us to get off he has just aimed the car at us and accelerated. So we have to run out of his way.
I try to keep a low profile and don't engage with him if I can help it. But he waits until we are on the drive and then comes out. He tried to stop me getting back into my house the other day by standing in front of my rear yard gate and refusing to move.

[des8]

Re: advice needed on easements and rights of way

Can you post up the wording of the easement, and the permission that was given to the dominant to erect the gate.

Idle musings:
If it is a right of way only, when you eventually reply to the solicitor tell them that does not permit parking by visitors, which is a nuisance and could result in court action for trespass.

As Wales says "an a******e, and generally there's no sensible dscussion with them

[amphiprion]

Re: advice needed on easements and rights of way

Hi des8 I'm out for half an hour and will post it when I get back. As far as I'm aware the agreement with the police over the gate was a verbal one. So there is as far as I'm aware nothing in writing. Would that make a difference? I have been able to find an old photograph from the early 1990s that shows the old gate in the exact same place. Also Google maps street view shows the gate around 2008. Before the current owner bought the house.

[amphiprion]

Re: advice needed on easements and rights of way

Ok. This is from the form tr1 submitted to the land registry.
The transferors reserves to itself and it's successors in title the owners and occupiers of number (address) a right of way at all reasonable times to pass and repass over along and upon the private access roadway leading fom (street) to the garage at the rear of number (address) hereby transfered to the transferee with or without vehicles for all purposes connected with the use and enjoyment of the property hereby transfered but for no other purpose whatsoever. The transferor and it's successors in title being responsible for one half of the cost of maintaining and repairing the said roadway.

[amphiprion]

Re: advice needed on easements and rights of way

Also can anyone tell me does the above mean only the owners/occupiers can use the right of way or can they give permission for visitors to use it?
What does at all reasonable reasonable times mean? What would constitute an unreasonable time?
And what does it mean by use for no other purposes whatsoever!
I know it might sound stupid but what are the legal meanings of these phrases?

[ostell]

Re: advice needed on easements and rights of way

Pas and repass implies to me that the right is for access only as long as they keep moving and doesn't include parking.

[amphiprion]

Re: advice needed on easements and rights of way

Just the owner/occupiers or anyone with his permission?

[Openlaw15]

Re: advice needed on easements and rights of way

Also can anyone tell me does the above mean only the owners/occupiers can use the right of way or can they give permission for visitors to use it?
What does at all reasonable reasonable times mean? What would constitute an unreasonable time?
And what does it mean by use for no other purposes whatsoever!
I know it might sound stupid but what are the legal meanings of these phrases?

An easement is a right to use another's land likely owing to long use by previous occupants. It does not require permission as the rights are historical. In general, anybody can use an easement as there is no exclusive right to use it, as far as I understand. A right of way sounds like an easement to me. Owner means has purchased the property and occupier mainly means does not own it (the property) but may live in it via a lease, which requires the easement for a right of way where there's no alternative route. If the right of way is impeded it could be a substantial interference. If you don't remove the obstacle, the person can get a court order. This could be an expensive problem for you.

[Openlaw15]

Re: advice needed on easements and rights of way

Ok. This is from the form tr1 submitted to the land registry.
The transferors reserves to itself and it's successors in title the owners and occupiers of number (address) a right of way at all reasonable times to pass and repass over along and upon the private access roadway leading fom (street) to the garage at the rear of number (address) hereby transfered to the transferee with or without vehicles for all purposes connected with the use and enjoyment of the property hereby transfered but for no other purpose whatsoever. The transferor and it's successors in title being responsible for one half of the cost of maintaining and repairing the said roadway.

The right of way must not be abused, ie 'right of way at all reasonable times.' Successor in title means perhaps their son or daughters who inherit the property interests.

[amphiprion]

Re: advice needed on easements and rights of way

There is an alternative route to the house it is situated on a main suburban road. There is vehicular access to off road parking at the front. And parking available on the road. My property is not the only means off access. The right of way is specifically recorded with the land registry as above and only applies to access to a garage and single parking at the rear.

[amphiprion]

Re: advice needed on easements and rights of way

An easement is a right to use another's land likely owing to long use by previous occupants. It does not require permission as the rights are historical. In general, anybody can use an easement as there is no exclusive right to use it, as far as I understand. A right of way sounds like an easement to me. Owner means has purchased the property and occupier mainly means does not own it (the property) but may live in it via a lease, which requires the easement for a right of way where there's no alternative route. If the right of way is impeded it could be a substantial interference. If you don't remove the obstacle, the person can get a court order. This could be an expensive problem for you.

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?