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Joshua
Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 24551
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hi I live in England in a property which can only be accessed

Resolved Question:

Hi
I live in England in a property which can only be accessed (from the highway) by driving over a lane which is privately owned.
I and my two elderly neighbours have a right of access for any purpose in the deeds to our respective properties.
The lie of the land is basically like a capital L, with me and my two neighbours located at the foot/bottom of the L
A fourth neighbour, who lives (on the left hand side) of the in the upright part of the L, has blocked the Lane by fixing a gate across the top part of the lane, which partially blocks the entrance to the extent that no vehicles can pass up or down it. Although pedestrian access pass this gate is possible.
Myself and my two neighbours have contacted the owner of the lane and he to his credit has instigated court action to have our access restored. However although papers were submitted in August 2013, no court date has yet be set for a hearing.
It has been suggested that we need to take our own action against the neighbour blocking the lane, possibly by use of the Human Rights act, presumably on the basis that this neighbour is not respecting our rights.
As you will can no doubt imagine the matter is becoming more urgent (with winter etc).
What would suggest.
Submitted: 1 year ago.
Category: UK Property Law
Expert:  Joshua replied 1 year ago.

Joshua :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Joshua :

Would I be correct to assume you have raised the issue with the neighbour directly? If so what is his response please?

Customer:

Yes I have raised the issue with the neighbour. He refuses to allow access

Joshua :

Thanks. Does your right of way provide for a right both on foot and by vehicle?

Customer:

The wording of the lease is that we have right of access over the lane in question for "Any Purpose"

Joshua :

Thanks but it does not specify the type of access - i.e. access on foot or by vehicle for any purpose?

Customer:

The conveyance was done in circa 1961. The Full woriding is that "A right of way in common with all others entitled therto at all times and for all purposes over the roadway"

Joshua :

Thank you. Finally have you in practice used the lane to drive as well as walk down and from what you say the owner of the land does not dispute that you have a right of way by vehicle? Have you exercised the right for more than 20 year?

Customer:

It would appear he does not dispute our right of access. although he is less than approachable and frequently abusive, so I am not exactly what his "problem" is. We have lived hear for circa 8 years. My other two neighbours for much longer. In the time that we have lived here we have both driven & walked up and down the lane. My other two neighbours have similarly done the same whilst we have lived here and I believe have done so for more than 20 years.

Joshua :

Thank you. Based on what you say, you have a legal easement over the roadway in question, albeit the right of way by vehicle is not expressly provided for in the deeds. However there is consistent authority in various cases such as Pwllback Collary v Woodman [1915] and Wheeldon v Burrows [1879] that establises that both the common intention of the parties and the reasonable necessity requirements will be implied by the court when interpreting a clause which is ambiguous and coupled with one of your neighbours having more than 20 years of use would form a strong basis for an argument for a right of way especially given the "all purposes" provision which tends to be interpreted widely by the courts.

This being the case the neighbour may not substantively interfere with that right of way. There is authority on this matter in the case of Smith v Garrard [2004] which established that an interference must be a substantial interference in order to be an actionable interference. Clearly this is from what you say. So what do you do about it...

Joshua :

A gate will not amount to substantive interference on foot providing it can easily be opened or stands open. A gate can amount to a substantive interference for vehicular access where it significantly impedes right-of-way and in particular of course where is is locked and you are not given a key.

Joshua :

The owner of the land could simply himself or via an agent (e.g. you) give notice to the neighbour that the gate amounts to a trespass and it must be removed within 10 days failing which he will attend to remove it himself and look to him for the cost.

Joshua :

It is important the gate is not damaged in the process if this is the approach taken and it must be returned to its owner once removed.

Joshua :

Alternatively either the owner or anyone who benefits from a right of way can apply for an injunction and costs requiring him to reopen the road allowing you free unfettered access. if you are forced to apply for an injunction in this respect, the court form you need is form N16A

Joshua :

http://www.hmcourts-service.gov.uk/HMCSCourtFinder/GetForm.do?court_forms_id=402

Joshua :

ideally, you will wish to take photographic evidence of the impediments his placed in the roadway an provide these to the court together with copies of any letters you have sent and a copy of your deeds showing the right of way.

Joshua :

You can ask for urgent court time to hear the application by speaking to the court manager on the basis of urgency and need. The court will allocate time according to workload and merit of your request but for blocking of rights of way will in principle be prepared to prioritise such a hearing and such matters can be heard very quickly.

Joshua :

The court should be prepared to issue an injunction and costs against the neighbour and if the neighbour ignores a court order the court can hold him in contempt and ultimately issue a warrant for him to be brought before the court and apply a custodial sentence in the case of repeat ignorance of the injunction.

Joshua :

Is there anything above I can clarify for you?

Customer:

I would add that the lane was blocked by the neighbour when we had a delivery of bricks to our property. At that time his wife stated that our rights of access over the lane were rescinded. A unilateral decision by her/them. So in answer to your question they do not dispute pedestrian access, but are not prepared to allow vehicular access. The gate itself only partially blocks (about 80% of the lane). The gate is chained to his fence and in addition he has nailed pieces of wood to it (connected to the fence) which prevents it being opened/closed i.e. there is no key to it.

Joshua :

As he is not the owner of the lane from what you say his opinion on whether you do or do not have access is redundant. As above you have a strong claim to vehicular access in any event based on what you say but that is not an argument you have to have with anyone other than the owner of the lane who from what you say is on board with you anyway. If you wish to cover your bases you could consider asking the owner to give you a letter confirming you have a vehicular right of way though it is not necessary.

Joshua :

Is there anything above I can clarify for you any further?

Customer:

Having had a quick look at the form, I assume it would not be an action that raises issues under the Human Rights Act? Also according to the owner the court has a backlog and the only way of speeding things up would be to issue an "Emergency Injuction", is that what you mean by getting the case heard more quickly. As based on what I have been told by the owner this seems to be the only way he couid speed it up. My final question is do you think it is more likely that his case will get heard (given it is in the queue already), that us starting a fresh action?

Joshua :

It wouldn't raise HR issues. Exactly you can ask the court to hear the case on the grounds of necessity. There is a strong argument for such a request if you are being prevented from accessing your home. You could speak to the court manager in respect of the owners application if he has already sought an injunction however making your own application puts you in control as you are inevitably more motivated than the owner. If you leave it with the court they will get to it when they get to it but injunctions can be heard next or even same day on grounds of necessity - you have to make your case - something along the lines of unable to access your property and neighbours are elderly and so on would be your primary grounds for your request.

Joshua :

Does the above answer all your questions or is there anything I can clarify or help with any further?

Customer:

Thanks for your help

Customer:

I cant think fo any other questions to raise at the present time.

Joshua :

A pleasure. I hope you are successful in resolving the matter swiftly which little doubt will be the case from what you say.

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with though please reply back to me though.

Joshua, Lawyer
Category: UK Property Law
Satisfied Customers: 24551
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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