Property rights/Right of Way

[amncat]

Can anyone help with this?

We live in a terraced house in the middle of a row of houses, there is an alley way at the back of our property. Just under half of the street has moved their back fence and blocked off the alley way making their gardens bigger and preventing passage along the length of the alleyway.

The prime motivator in blocking off the alley was to increase the security for these properties (many people had been broken into and the police had recommended the alley way be blocked in some way). There was also a the rat problem from the refuse that had been dumped, people had had windows broken from the rear, and threatened by kids with knives. All in all the back was viewed as a hazard to be dealt with and so over 9 tonnes of refuse was cleared away and fences erected.

Now it appears that towards the end of the road a couple of people are not hapy with this and have engaged the help of the local elected member from the Council (she happens to be a friend) and is agitating for the removal of the fences. The local elected member has stated that legal action is pending to force the 'fence residents' to remove their fences.

There may be a right of way on the alley way which is under private ownership registered in 1906 under the name of a man long dead. Entrance to the alley way is at either end and the person agitating for removal of the fences has complete access to the back of her property.

Question is - what is she talking about? Can we be taken to court? and if we can for what?

[buildersmate]

Hmm, this is a complex one! I can't answer the question completely but I'll try and give you some pointers. Rights of Way are established over a long period of time and once established are associated with a parcel of land, not to an individual (you may know this). If you (or any of your neighbours along this row of houses) have an easement enabling you to pass or repass along this alleyway, it may be contained in your land title - assuming your land is registered at the Land Registry. Check there first - there would be wording tied to a plan that should the extent of the entitlement to access. If it isn't there, you may still have an easement - because under a principle known as Prescription you can acquire rights of access over private land after 40 years, and its fairly evident from the date you gave these houses are 100 years old. If you have the right then it it is probable that all the other dwellings have the same right.

You say the alleyway is privately owned but the owner is dead. That seems to imply that ownership of the alleyway is owned by one of the row of houses? If so, I don't see what interest (or right) the Council or anyway else has to demanding that those who have annexed land to their own land to remove the fence. The owner of the land would have to make such a demand. After 12 years (subject to conditions) of occupation, the annexed land would be lost by the original owner.

Answers: I don't know under what basis a THIRD PARTY can demand an individual ceases to occupy a piece of land. I don't see how you or any other owner can be taken to court. For what - illegal occupation of land? - such situations when they do occur on application by the OWNER of the land result in injunctions inforced by bailiffs to retrieve the land (example - removal of travellers from fields are dealt with this way). Sounds like kite-flying.

[stanleyman]

If a right of way existed before then it cannot be blocked. If it is a private right of way only for the residents then this is an easement obtained over many years use or it will be granted in the deeds if it was originally intended as an access and can be legally enforced. Only with the full agreement of all those involved can it be removed.

If it is a public right of way then it is a criminal offence to block it in the same way if you blocked a public road. The public are entitled to remove sufficient blockage to pass. Once a right of way always a right of way. You need to apply to your local magistrates to have the right of way stopped up or declared of no further use but this may not be easy if your neighbour is a rambler!

You can check with your local Rights of Way ofice with the County Council if this route is on the definitive map, even so, if it is not, then someone can make a claim as a Public Right of Way that can result in an inquiry.

It is worth trying to convince the neighbour of the benefits of keeping it unusable. Good luck.

[Hgrove]

if you and the other residents have moved your back fences back more than 12 years ago you may have established adverse possession (aka squatters' rights). I'd be curious to know who is paying for this threatened legal action. Is Council money being spent on this? I don't think the Council has power to spend money on what is essentially a private dispute among homeowners. Regarding stanleyman's answer, I think it may be the Lands Tribunal rather than the magistrates.

[Buenchico]

(2-part post):

A few legal points:

1. If the alley is a public right of way, then anyone who obstructs it is committing a criminal offence. It is the duty of the local authority to seek to remove such obstructions and, if deemed necessary, to prosecute those responsible for the obstruction.

2. If the council successfully prosecute someone for obstructing a public right of way, the magistrates can make an order for the removal of the obstruction. While the original offence cannot lead to imprisonment, failure to carry out an order of the courts can do so.

3. The law on public rights of way doesn't, however, totally ignore your concerns about the prevention of crime. Since February 2003, under the provisions of the Countryside & Rights of Way Act 2000, councils have been granted the right to close or divert public footpaths, by use of a Public Path Order, for the purposes of crime prevention. This can only occur, however, in an area which the Secretary of State has already designated as suffering from high levels of crime. (So, if the alley is a public right of way, and you wish to remove that status, it might only be possible to do so if you can convince Whitehall that you live in a high crime zone).

[Buenchico]

4. If the alley is not a public right of way, then it is likely that covenants exist, in the deeds to the houses, granting rights of access, from either end, to all of the residents of the houses which back on to the alley. Covenants on properties are frequently ignored. (e.g. every house on the 1970s estate where I live has a covenant prohibiting external TV aerials. It's a poor reception area so every house has an external TV aerial!). Despite this, if a breach of covenant comes before the courts, the matter will be taken very seriously and 'remedial action' (e.g. . removing our TV aerials or unblocking your alleyway) will be ordered. Failure to comply with such an order can lead to imprisonment. The problem with covenants is that they're almost impossible to 'undo'. (It usually requires an Act of Parliament to be passed specifically to reverse the covenant!).

5. Rights of way (and covenants in respect of access) are unaffected by the ownership of the land to which they relate. So it makes no difference whether the land is owned by the council, by an individual (deceased or otherwise) or jointly by all of the householders. None of these bodies, or people, have the power to change the access rights of other people.

Chris

[Buenchico]

Just a short post script:

I suggest that your first action should be to call at your local council offices and ask to see the definitive plan of rights of way. If the alley is marked as a public right of way, you know that you need to talk to the council's rights of way officer about whether it is possible to have the right of way revoked. If it isn't, you'll know that you'll be dealing with problems associated with covenants. (It's also possible that there could be easements over the land which were created at some time after the construction of the houses (and of the alleyway) but this is far less likely than a problem relating to covenants). If you find out that the problem relates to covenants, then it's definitely time to consult a solicitor.

Be very cautious about uncovering old covenants. You might find that there are several things you're not complying with. (If I walk out of my cul-de-sac, onto the main road, past two houses and the parking spaces for three cars, I eventually come to a small grassed area which the next house along has absorbed into their garden. I'm hoping that they never find out about the covenant in my deeds which says that I'm responsible for cutting 'their' grass!)

Chris

[joko]

We have alleygates in my area, and all residents have a key. if the council don't have plans for this scheme in your area, why not suggest to residents that they all club together to get a gate put at both ends of the alley and you all get a key. That way everyone can still walk down it and use it as normal, except they have to open and shut the gates.

[amncat]

Thank you for your replies they have been very helpful.

I have found out the following;

The alleyway is not a public right of way.

In my deeds I am granted by convenant the right of vehicular access to the rear of my property ( and presumably everyone else on the road is too).

Easements appear to be a bit more difficult to establish. There isn't any mention of them on my deeds or the deeds of the alleyway but perhaps because the alley way was unused for at least the last 14 years any easements based on usage can not be claimed?

So if I am granted access under convenant and therefore presumably so is everyone else then as long as those who wish to have rear vehicular access have it - ie. the lady agitating for the removal of the fences- then she hasn't a leg to stand on what the rest of us do?

All the neighbours who have blocked the alley had the permission of those who would have used the passage way to the rear of their property to gain rear vehicular access to their own property.

The long dead owner of the alleyway was the original developer and he just left the unused land in his name and did not will it on, so there is no 'owner' to complain about his usurped land.

So, although it would have been better to have all the residents agree on one solution, as long as we aren't blocking their right of access to their property they can't complain on the basis of the convenant on our deeds or the basis of easement?

[stanleyman]

The lady on the end could argue that she is entitled to access from either end! She would have to take you all to court to enforce that as a civil matter so you can tell the councillor to get lost. The problem might arise when you sell and a new owner also enforces his access rights. I believe you can apply to a land tribunal to get the covenants removed or modified.

[stanleyman]

You can also claim the fenced road as part of your land but it will not alter the covenant position or could it?

[CrazyScot]

You cannot just help yourself to property.
If you want to block each end of the lane, then all the residents need to get a key.
Check the title deeds.
Also, do not leave this too long or the ones with fences could claim precedent.