Our right of way blocked by a conservatory built by neighbour?

by Readers Question

15:01 PM, 19th December 2019
About 2 months ago

Our right of way blocked by a conservatory built by neighbour?

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Our right of way blocked by a conservatory built by neighbour?

We would really appreciate some sound advice here, on the situation we are facing. We bought a mid-terraced grade 2 listed cottage back in 2006. This had been a probate property and had been neglected for over two years and gardens were over grown.

It took our builders a year to refurbish the property before we could move in. In early 2007, our builders hacked back the substantial growth of vegetation in the rear garden and discovered a wooden gate between ours and the neighbouring property. However, access to their garden was blocked by the building of a conservatory. When we brought this to their attention we were told that the previous neighbours got along well and they just kept the gate as an informal arrangement. We did not investigate the matter further as we all seemed to get on and replaced the fence without a gate.

What had actually happened was that in December 2005, the  neighbour  took advantage of the lack of activity at the property and decided to build a conservatory over the back of their property, completely blocking our right of way, even though they knew the right of way existed as it is shown on their property’s title deed. Now the only way we can now take our wheelie bins out is via some third party land. If we lose this access, our rear garden will be completely blocked in.

Also we cannot store the bins in the front garden because it is small, there are steps and it is a conservation area. If we were to sell our property it would lose value because of lack of rear access, though their solicitor disputes this. This matter has now become entrenched.

They have refused to accept our right of way is still valid, and refuse to remove the conservatory, because it has been there since 2005 and we didn’t really complain about it before.(They also claim it was built under permitted development rules, but we didn’t think these applied to conservation areas) We cannot get them to agree to an alternative right of way without them applying lots of restrictions on when we can and cannot use it even though we have  made it clear, we would only use it if we lost our access over the third party land.

Our solicitor has advised against us not to take this matter to litigation because of the risks and costs involved.

Any advice?

BJ



Comments

Ian Narbeth

15:44 PM, 19th December 2019
About 2 months ago

BJ, In general, the courts are reluctant to find that an easement has been abandoned. This is because property owners do not normally want to divest themselves of property rights (unless there is an advantage in so doing) even if they have no present need for the easement in question.

That said if the neighbour fights back, as they will if they will have to knock down the conservatory, you will have to risk tens of thousands of pounds in litigating. As it was a probate property the neighbour may say that they agreed with your now-deceased predecessor that they could build. Or they may have some other defence. In the meantime, you will not be able to sell your property (and may have difficulty mortgaging it) whilst the case rumbles on.

It appears you were unaware of the gate when you bought which I am afraid goes against you as you bought without taking into account the benefit of the right of way.

yew tree

7:48 AM, 20th December 2019
About 2 months ago

try this site for info
http://www.gardenlaw.co.uk

Rennie

8:43 AM, 20th December 2019
About 2 months ago

I know nothing but just a thought! If they are willing to give you a different path across their property with restrictions I would take it. Try to get it as near to the original permission as possible.

Rob Crawford

15:10 PM, 20th December 2019
About 2 months ago

Sometimes all you need to do is get a solicitor to write a threatening letter. £200 for the letter, but maybe try a different one to that you have been talking to. I would also write to the Council's Planning team. This should have been picked up during the Land search carried out by your solicitor, they may help you.

Laura Delow

11:35 AM, 21st December 2019
About 2 months ago

Do you have legal insurance on your home buildings & contents policy? If so, do call them to discuss the case & if they think there is a 50% or greater chance of winning, they will take on the case & appoint a barrister for if/when it gets to court if not settled earlier & cover litigation costs up to £50,000 or £100,000 (policy sums assured vary).

Gianni

16:24 PM, 21st December 2019
About 2 months ago

"Our solicitor advised...." is this the same solicitor whom you used to buy the house and failed to inform you of the right of way? If so, inform them that you are going to report them to the Law Society unless you get the matter resolved by them to your satisfaction at no cost to you.

Jo Westlake

17:16 PM, 21st December 2019
About 2 months ago

Was the access right mentioned in your deeds?
I had a similar situation with a neighbouring property. The previous owner of the neighbouring house had bricked up the gateway about 5 years before I bought my property. There were covenants in both sets of deeds mentioning the pedestrian right of access across the neighbours garden. After the neighbour sold his house to new owners I decided I wanted to use the access as garden maintenance for my house was a nightmare without it. Various solicitors letters were exchanged. In the end after a sledgehammer was used my new neighbour decided to sue their conveyancer for not advising them of the implications of my right of access. They received substantial compensation in the region of 10% of the price of their house. Certainly enough for them to buy my access rights and a large piece of my garden for £14K and also build a two room extension. It took best part of 5 years for them to get the compensation but I think we were all delighted with the outcome.
As far as I can remember 20 years has to have elapsed before it is deemed that an access right has been abandoned. In my case it was easy to prove usage as the covenant had been inserted less than 20 before.

Edwin Cowper

20:56 PM, 21st December 2019
About 2 months ago

I would go to a good solicitor. Someone who is aggressive. Someone who really fights for their client. The law here (if the facts are correct) is quite clearly in your favour. But you need the right solicitor to get a result. Someone additionally needs to consider whether additionally you can use self help, and what that can be.


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