rights of way

[wendee]

Hi legal beagles
I have a back land prescriptive Right of Way (40+ years) and a tenant of the land that it crosses has just decided to put up a locked gate and refuses to give me the combination. I have sought legal advice and solicitors letters have been sent to the tenant and the owners of the land, so far no result and it has cost me over £1600 in solicitors fees!
Can anyone please advise me what I can do next without it costing me a fortune?

[R0b]

Re: rights of way

Hi legal beagles
I have a back land prescriptive Right of Way (40+ years) and a tenant of the land that it crosses has just decided to put up a locked gate and refuses to give me the combination. I have sought legal advice and solicitors letters have been sent to the tenant and the owners of the land, so far no result and it has cost me over £1600 in solicitors fees!
Can anyone please advise me what I can do next without it costing me a fortune?

Hi Wendee,

interference of an easement would give rise to what is known as a private nuisance. I am afraid that if the person has decided to put up a locked gate and refuses to give the code then your only other recourse would be to take legal action against that person. If the solicitor instructed has already cost you £1600 sound like more than just a few letters have been sent out?!

[des8]

Re: rights of way

How long ago was your easement blocked?
I believe there are strict timescales (6 months from time of blocking?) for you to challenge, otherwise you may lose your prescriptive rights.

I think you need to register your right of easement with Land Registry. On successful registration you could apply for a court order to enforce the right.
You could apply for a court order before registering the right, but I think registering first is probably the better way forward.

You might find this link useful: https://www.gov.uk/government/public...y-prescription

[wendee]

Re: rights of way

Hi, thanks for your reply
the solicitor costs so far cover.. to read and peruse our information then give advice as to wether we had acquired the prescriptive right of way + a couple of phone calls + reading and replying to a few emails, £220 travelling to their other office to meet us - then to write two letters , one to the tenant, one to the freeholder
-all of which seems to have got us nowhere -

[wendee]

Re: rights of way

Hi des8
the path was locked on the 10th of October.
I am applying to register at the moment
but am concerned about doing it right, so I have prepared as much as I can and am putting it back with the solicitor - but I am very worried how much all this will cost
as the freeholder is the local authority and I would be surprised if they don't object.

[des8]

Re: rights of way

Have you asked the solicitor for an estimate of his costs and his charging basis?
The latter should have been supplied to you at the outset

[R0b]

Re: rights of way

I don't think registration is necessary for the prescription as it was circa 40 years ago and precedes the LRA 2002 - I think it would be an overriding interest under LRA 1925 and does not necessarily need to be registered.
You can however apply to court for a declaration confirming that the right exists and at that point you can then register the easement at the Land Registry. To constitute a private nuisance it has to have a substantial interference and putting up a gate does not necessarily mean a substantial interference. That being said if the tenant is refusing to give you the code or key to access then that could be deemed as a substantial interference.

My property knowledge is a little rusty, I don't think much as changed to what I've said above but I could be wrong.

[wendee]

Re: rights of way

Hi.... If I have to take further action against the tenant to get the gate open, would that be an injunction? and would that be in a Magistrates Court?

Is it something simple? or am I looking at a lot more expense?

I am paying a solicitor for her advice but I am loath to keep contacting her
due to the bill escalating. Now another £600 and other than a couple of phone calls and a few emails saying not a lot - nothing has really moved forward.

I have read that I am unlikely to get much back in costs etc, (assuming I win) is that true?
Everything seems to be in the tenants favour to flout my right ! and not cost her a penny!

Sorry for the moan - but I have lost the plot of what to do next!

[des8]

Re: rights of way

Blocking an easement is a trespass, and so any action you take would be in the civil court.
Presumably you are not looking for damages, but just for reinstatement of the easement.
In that case you would simply apply to the court for an order that the tenant who is in possession of the land remove the block. This could be done by supplying you with a key to the lock.
To be successful you would have to show the easement exists, and that it was now blocked.
Chances of recovering costs are minimal...........so get a quote from your solicitor first before proceeding!

You said earlier you were applying to register the right of way with LR? How is that going?

Here's a link to an article about easements and remedies you might find useful:http://uk.practicallaw.com/9-385-9230#a808524

[wendee]

Re: rights of way

Hi des8......I have spent hours and hours getting all the documents together-
supporting statements-photos of the path- google views- plans etc.

I was just about to send it all off when I remembered that the Local Authority who owns the land also have a legal dept. So I have given the *solicitor all the docs to approve - I'm not sure wether to get her to send them in, or to do it myself?
I just wish I could pin *her down to give me a proper idea of final costs rather than a cost per hr and very little idea on how long she is going to spend on it!
She did give a time scale of two hours to initial advice (first and only meeting)
and that was the first £800.... then two letters, one to tenant, one to landowner...then £1680......I have no experience of this type of legal business.

Almost wish that I had opened the gate and let the tenant take out an injunction on me!

[R0b]

Re: rights of way

You'll have to weigh up whether its worth continuing with the solicitor or not if your not going to recover your money. Solicitors charge in 6 minute blocks so every time you call, email even for 30 seconds that is 1/10 of her hourly rate she is charging you for. Injunctions are expensive and I would avoid that as your first port of call. The quickest way would be a declaration which would prove your right of way, register to the LR and then if the tenant continues to disobey, its likely at that point it you can gain an injunction and costs against him/her.

Again, you need to weight up whether you are likely to get any costs from the tenant if it does go to court and an injunction is the only option. I suppose you could ask the judge to order the removal of the gate as an alternative at the tenants expense.

To register at the LR you will need evidence of some kind to show that there is a legal right of way, if you have no evidence then court is the only option to obtain that.

[des8]

Re: rights of way

Almost wish that I had opened the gate and let the tenant take out an injunction on me!

k/a "Abatement"
With nuisance, you also have the contrary right of abatement. This means you can remove the nuisance. It is generally confined to simple cases (see for example, Burton v Winters [1993]
However you must act peacefully, cause as little damage as possible, give prior notice and act promptly.

[wendee]

Re: rights of way

Hi.... I have sent off documents to LR to register the ROW. The solicitor checked them over and says that they are "Pursuasive" whatever that really means.

Anyhow...recently the burdened land has come up for renewal of tenancy (licence)
and the landowner (Local Authority) have shown some informal interest in me applying for it.

My Question is..... If I applied to take over the tenancy would this affect my rights to register the Right of Way? Or is it a ploy?

[des8]

Re: rights of way

I don't see why you, as beneficiary of a right of way,should not register that right even if you become possessor of the burdened land.

The LA might be thinking that if you become tenant you won't be bothered about registering the right.
Just check the tenancy agreement to make sure they haven't slipped a clause in!!