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Thomas
Thomas, Lawyer
Category: UK Law
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Experience:  BA (Hons), PgDip, Practising Solicitor
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we own gates to an archway under our property. The land under

Resolved Question:

we own gates to an archway under our property. The land under the archway is
owned between our neighbours (1/3rd) and a Housing Assoc. (2/3rds) who should have transferred it to the previous owner of our property (a deed was raised but was not registered with L. Reg). A 3rd party recently bought the land behind the archway (at auction) and want to come through the gates. We have said no as they don't appear to have a explicit right of way in their Title docs. etc. They have used force recently to get in and remove rubbish from the site but still don't have a key.
Both landowners of the land under the arch have stated they have not given them permission to come through. We have received threats if we continue to oppose them. The previous owner of the rear land did use the archway but we found out since the auction that he prob. only had prescriptive rights and had only been using the tunnel in that way for 15 years absolute max. (and will testify to that). In previous years the land at the rear (which includes a workshop) was accessed through a different pair of gates (up until about 2009).
Submitted: 1 year ago.
Category: UK Law
Expert:  Thomas replied 1 year ago.
Hi,

Thanks for your question.

Is the new landowner able to access their land via any other way?

Kind regards

Tom
Customer: replied 1 year ago.

The other way to the land is over someone else's land


these people used to own the land recently sold . However they gave up the land in 2009 and put up a concrete fence separating the workshop and land from theirs and effectively landlocking it. We have had some advice that the new owners could claim prescriptive rights to come through the other gates if they had to , but the advice has not been verified by a solicitor.


 


When the workshop land was sold at auction their was addendum that their was no legal right of way but implied that the archway would have been used for years for access to the workshop/land which is not true.

Expert:  Thomas replied 1 year ago.
Hi,

In respect of the over way through - do they have a legal right of access through it registered on their LR title?

Tom
Customer: replied 1 year ago.

No! I don't think so.

Expert:  Thomas replied 1 year ago.
Hi

Thanks for your patience.

Okay. If there is no registered right of way for them to use the archway/gate as a means of access then the only other ways that they could claim a right of way are “by prescription” or “by necessity”.

In order for a right to be claimed by prescription it must have been exercised for a continuous period of twenty years by the owners of the land. If the right has not been exercised for that length of time then they cannot claim a right by prescription. Additionally, if they cannot prove the length of time in excess of 20 years then they are not likely to be successful either.

If they cannot claim a right by prescription then that only leave a claim “by necessity”. This is where an owner can only access his property by access across another’s land. If this is a case they can be granted an easement even if the other land owners refuse. However, this right only extends to being on foot only, so no vehicles.

My advice would be to pool resources with the other landowners that you refer to and write a “put up or shut up” letter to them effectively saying “claim an easement or do not use the access” then secure the gate (locks?) so that they cannot use them. State that if they damage the gates then you will report them to the police (who will say, probably correctly, that it is a civil issue) and also sue them for the damage and the cost of resecuring the gate again.

You can then defend any claim that they seek to make. Hopefully, they will choose to attempt to gain access via the other way on the basis that they are less trouble to deal with.



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Kind regards,


Tom
Thomas, Lawyer
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Satisfied Customers: 6298
Experience: BA (Hons), PgDip, Practising Solicitor
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