Right Of Way

[Myriad2112]

My mother has a garage which she has always had access to via the people next door's garden. Last time I saw her she informed me that the neighbour (who is apparently a solicitor) has put a padlock on the doors so she can't use it. He told her that in order to maintain a right of way she must apply for permisission and update the deeds. She is quite old and has a form of dementia. Could there possibly be any truth in what this nasty man is saying?

[Zacs-Master]

Unless we can see a copy of your mothers deeds, it's impossible to say. I would go and have a word with him.

[Brinjal]

Aren't some people just despicable . Creating aggravation for an old lady.

[Sharingan]

If it's her garage he can't put a padlock on her property but I think he can deny her access across his ground possibly. Someone will be along in a minute like Barmaid, Buildersmate or Fredpuli to inform you more fully. Hope you get it sorted out for her xx

[Baldric]

I think I've seen somewhere that if you can prove use of a ROW for 12 years you should not have a problem.

[buildersmate]

Not 12 years, Baldric, but at least 20. (you are perhaps confusing it with adverse possession).

Has she (including previous owners if she hasn't been there 20 years) been accessing this garage for more than 20 years in this 'unofficial manner'? If so she may have obtained an easement (right of way) by prescription.

[Myriad2112]

Thank you. The only thing that has changed, as far as I'm aware, is that she doesn't use it very much as she no longer drives. I'm not sure that's a valid reason to lock her out of her own garage though.

[Baldric]

You're right BM,
that's what I was thinking of.

[buildersmate]

Well if she's been accessing it for more than 20 years, she should continue making a point of visiting the garage every couple of weeks or so (just to maintain the continuity).

This issue is worth continuing with, because what this solicitor bloke is probably after is money in order the 'regularise' the situation by means of a proper agreement. HOWEVER, if right has been been established (by this 20 years business) she can claim an easemenr without paying anything. I'll wager he knows this and is trying it on.

[Rosetta]

The neighbour may also be thinking about the longer term by setting the precedent now, should the property be sold on at a later date. I would have a word with your own solicitor

[FredPuli43]

When was the garage built? Is the only access to it by passing over the neighbour's land ? I'm thinking of the time over which it has been used, but also of a possible estoppel, regardless of time. It would be wholly wrong if the owner of the neighbour's property permitted the construction of the garage, raised no objection to it, never claimed any right to close it nor demand payment for its use, the only access was inevitably over his land by the one route, and some later owner was to claim there was no easement established and claim to close it, rendering the garage useless for the purpose for which it was constructed. I think the late Lord Denning would have had a few words to say about that!

[FredPuli43]

"to close the access" rather than "to close it".I mean the access, not the garage itself. lol

[themas]

I think this might be a bit more complex than seems at first glance. I assume the garage & it's door is entirely on your mother's property & that it is impossible to gain access to it with a car - I imagine it must be possible to gain access on foot - without going across the neighbour's garden.

If that was the case when the garage was built then either:

1. The person who built it did so without considering the issue of access & only subsequently started doing so using the neighbour's garden (in which case the person was pretty stupid!); or

2. There was an agreement (probably verbal) with the neighbour at the outset.

Either way, I think it is pretty well inconceivable that this use of the neighbour's garden started & continued without some form of agreement being made (albeit probably informal & verbal) with the neighbour.

If that is the case, I'm not sure the 20 year rule would work as I thought that had to be use without permission of the landowner (can bm please correct me or confirm?).

If I'm right there has been tacit consent by previous neighbours & the issue then is whether that binds the present neighbour. I wouldn't like to hazard a guess on that - it might need a solicitor (not the present neighbour!) to advise.

[askyourgran]

I've never heard of anyone having to update their deeds unless it adds to the property. We have an access path which leads to the back of our property, it is shown on our deeds, there is no end date for the use of this access, which has been in use for over 70 years. What a miserable speciman this neighbour is. I do hope it will be sorted out to her advantage. As far as I know a right of way has been granted to the owner of the property named on the deeds by legal deed and cannot be rescinded.

[FredPuli43]

If the access is necessary it seems a good bet that it will be thought that an easement has been granted. It would be unconscionable of the new owner to claim that, by buying the property, he is not bound by that.

[Myriad2112]

My mother has lived thfor about 30 years and never had a problem with having acces to her garage until the new man moved in. Yes it's on her land and yes she has access through a side door, which she uses to collect coal and wood. There are other houses which also used to share this access but the previous owner built them thier own drive in order to have some prvicy. I suspect that Rosetta is right. He wants to set a president in making sure that nobody can use the access at all.

[boxtops]

My advice would be to consult your own solicitor then, since your neighbour alleges that he has done the same.

[FredPuli43]

And your solicitor will write saying "B ! off !", but in rather more forensic and diplomatic terms. My guess is that the other side will make a tactical withdrawal and no more will be heard. The neighbour being a solicitor they will, almost certainly, consult with colleagues and be tactfully persuaded to keep the peace between neighbours. This neighbour thinks that your mother, being quite old and not in the best of health, will be a pushover but is in for a change of opinion; not a great surprise, since , so far, it seems like a try on !

[themas]

OK - so the access across the neighbour's land has been going on for at least 30 years - presumably without being recorded on either your mother's or the neighbour's deeds.

If you haven't already done so, get a copy of the title deeds to both properties (with the plans) from the Land Registry. I think the cost is about £4 per title. Make sure you go to the official Gov't website - there are a lot of fee charging private ones which make themselves look as much like the official one as possible.

If there is nothing about the access on the deeds then I would agree with the neighbour that something should be done about it. Your mother's property would probably have to have the access registered in order for any sale of it to go through (assuming the buyer's solicitor was competent).

The neighbour is saying your mother "must apply for permission". So he seems to be denying the existence of any easement. If so, your mother can presumably do a statutory declaration confirming the existence of the access & how long she has used it & this should create a prescriptive easement. You will need a solicitor for this.