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I own a leasehold property which is one of three leaseholds

Customer Question
in a convereted house....
I own a leasehold property which is one of three leaseholds in a convereted house. The owner of the ground level property has a garden which is split down the middle by a pathway which links the garages at bottom of property. This pathway is a right of way as per deed drawn up. The owners wish to rejoin the garden as one, putting down decking and erecting a gate at both top and bottom of the pathway. In so doing creating a large single garden which I would need to walk through and open and close gates at each end. I have objected to this development and have asked them on several occasions to to proceed. They have advised that they will now take the action within the next few days. What are my rights to stop this course of action ? The owner of the other lease property is also against this action. We have a management company of all three properties and have suggested meeting to discuss, however this has been ignored.
Submitted: 5 years ago.Category: UK Property Law
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4/16/2012
Solicitor: Thomas, Lawyer replied 5 years ago
Thomas
Thomas, Lawyer
Category: UK Property Law
Satisfied Customers: 7,635
Experience: BA (Hons), PgDip, Practising Solicitor
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Hi
Thanks for your question.
To enable me to answer your question could you please respond to the following:-
1. Do you have a right of way across the area to get to the garages?
2. Will you still be able to use the right of way if the works are completed
3. If so, what are the grounds of your objection to the works
Kind regards.
Tom
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Customer reply replied 5 years ago

Yes right of way access was granted in deed some years ago.

If work is carried out access will still be granted, although with gates at either end of pathway.

My objections to this work are based on having to walk through neigbours garden where they will have dogs, exercising and soiling, as they currently do in own smaller garden area. In addition it will restrict access when carrying larger items from car to property with gate access being obstructive. Thirdly I belive it wll effect the value of my property is selling in future as prospective buyers would not wish to walk through another neigbours garden.

Solicitor: Thomas, Lawyer replied 5 years ago
Hi,

Thanks for your reply.

Does the right of way specifically state that the partitioning as it is now should remain and, similarly, that there should be a path?

Tom
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Customer reply replied 5 years ago
It does not say specifically in words but has an attached plan showing hatched areas where right of way should be.
Solicitor: Thomas, Lawyer replied 5 years ago

Hi

Thanks for your reply.
We’re on sticky ground here I’m afraid. If the deed does not express that the partitioning should remain and that a path should be present and instead simply indicates the direction and area of the right of way then I cannot see that you have grounds for objection.

In order to object and challenge works you must be substantially and materially be in prospect of having the right of way denied to you. Thus, if they put up a gate on their land then you would be able to enforce that they give you a key for access.
The effects of the dogs are not hugely helpful to you. A court would probably take the view that having dogs would not prevent you from using your right of way. It might be less convenient (the court would say), but probably not to the extent that you are denied the benefit of the right of way. They may also suggest that the problem would be solved by housing the dogs when you wished to use the right of way. It’s very difficult to see that the works could be prevented on this basis and I could not advise you (were I instructed by you in private practice – which I can’t be under the terms of the site) that you have a good prospect of success).
As to carrying items through the right of way then if the right is on an on-foot basis then this would include items that you could physically carry yourself, but presumably a gate would not restrict this. If it did then it would be conceivable that you could ask for a bigger gate.
This is not to say that it would not be worth some sabre-rattle to see how much you can get them to afford you more flexibility. If they are not communicating with you then you could see a local property solicitor for them to write to them setting out your objections, irrespective of whether it would actually be enforced in litigation and see whether this prompts a more constructive approach from them. It would cost around £50_Vat for them to draft/send the letter.
If this has been useful please kindly click accept so that I may be rewarded for my time. If you do not click accept your money stays with the site and I do not receive any credit for the time I have taken to answer your question. You will not be charged any further money for clicking accept.
If you wish for me to provide you with further guidance on any question you may have in the future then please submit a further question to the board requesting me either by my profile or by marking your question. “FAO Tom”.

Kind regards,


Tom
Thomas
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