is my neighbour allowed to do this?

[glayzell]

Hi all,

it has been a while... I needed some advice and i thought there was only one place to go....

So, io have been living in my house now for 2 years and it is lovely, not finished, believe it or not, building control caused more problems than the CO. bSince i have been in the house i have developed really lovely and meaningful relationships with my neighbours and other in the local community, except one.

My house is a g2 listed georgian semi, was originally detached but a fire 100 years ago caused it to by chopped in half and a victorian terrace/semi slapped on the side... it is orignial!

My garden is longer than my neighbours, which means that half way down my garden the bottom of the gardens of the houses on the street at a right angle to my road butt up to the side of my garden. These gardens have an ally between me and them and the first garden you come to has an alley running down it's side out onto the road which is at a right anle to my road.... are you following me?

Since i have been in the house there has been an opening in my garden going into this alley, but the owners of the houses to whom this is at their side say i cannot use it. The access is not on my deeds nor the land registry, but the alley is on a 1906 OS map when their houses were fields and at that time my house would have been the only reason for it being there. I am also aware that pre 1925 rights of way were not always recorded on deeds. I have a number of neighbour who maintain the alley was their prior to the houses that currently occupy the space.... but this isnt the reason for the post, i dont mind not using the access, althoug i would rather not loose the right to it. I have only used the alley 3x in 5 years and every time with their permission...

reason for post:

Neighbours who say i cant use alley have blocked my opening with a fence about an inch outside my openening/boundary. It obviously looks awful and thay have given me the bad side and it looks as if the fence is going to go all the way along the length of the rest of my garden, 1 inch away from the existing 6 foot fence.

This obviously looks awful, and i am g2 listed and within a conservation area, as are they. can i do anything?

 

[Penners]

I'm not entirely sure that I have completely understood your explanation of this rather complex situation. However, here are a few thoughts.

Despite the fact that you have no particular wish to use the alley to which you have a disputed access, would it help the situation if you were able to show that you do in fact have a right-of-way over that alley? Would that strengthen your case? If so, there may be ways in which you could possible claim that right-of-way.

You mention that the neighbour has erected a fence adjacent to your 6-ft high fence, and that it looks awful. This seems to imply that their fence is considerably higher than yours. How high is their fence? I believe there are regulations affecting the permissable height of fences, which they might have infringed.

Is the troublesome neighbour's house also listed? If so, it's possible that they might have required LBC to erect their fence, and that they might not have sought this.

 

[Schoolmarm]

The alley way won't be in their garden then will it? If I have understood correctly they have fenced something that they don't own. You need to download a copy of THEIR deeds from land registry to see if you can find anything out.

Download both parts, the plan and the deeds.

You might need to go to the gardenlaw forum. There are some solicitors amongst the members.
Carry on here as well though for help with the listed building aspect.

 

[Pford75]

Can't comnment on the RoW issue without seeing more details of the deeds etc. I would suggest that the only way to resolve this bit is to seek the advice of a solicitor (did your purchase of the property highlight any RoW? If not, then I would suggest you purchased the property on this basis and can't really complain if you now wish to use a RoW).

Re: the fencing issue - This hinges on whether the alley to which you refer is common land, or whether it belongs to one of the properties with others having a RoW over it. We have an accessway between our property and our neighbours.....we own it, but they have RoW over it. The owner of any piece of land has a right to erect fences/boundaries on that land (as long as they stay within the planning restrictions which Penners mentions). It may be that they have erected a fence right on their boundary and that you object to the colour/style of that fence....but if it is their land and they have not flouted the planning restrictions, then they are quite within their rights.

 

[MdB]

It is also worth pointing out that if it isn't their piece of land and they place a fence around it, it can become their piece of land after a number of years (4?) if nobody objects to it. (This is even the case if the piece of land nominally belongs to somebody else.) It could therefore be worth objecting now and not waiting.

(I very much not an expert on this and the above could well be wrong)

 

[JoceAndChris]

What a horrid situation. Much as I dislike falling out with people, I'd be engaging the services of a good solicitor to help with the R of W aspect, which must add value to your house?

With the fencing, we had the same thing happen to us in London. My neighbour's fencing absolutely dominated our garden and I recall being extremely upset. There was nothing we could do though as it was their right to erect a fence of that height, and after a couple of years the ugly fence is invisible behind wisteria, rambling roses, etc - so don't think you will be stuck with that view forever.

 

[Lime]

glayzell, my feeling is that the neighbour has no right to obstruct your right of way.
If you have used the passage/path recently and regularly and it is shown on an old map your property has a right of way and the neighbour has no right to act as if your right does not exist.
Deeds of houses are nothing to go by.
Regardless of what deeds may say, the old map is evidence of a right of way that you have continued to use.
The opening in your fence is further evidence.
However it is up to you to take action.
Your rights exist only as long as you uphold them when put to question.

 

[Flyfisher]

Can a map actually show a private right of way though? I can see that a map could mark the existence of a track, but I don't think that, alone, is any proof of a right of way of any particular property owner. And it is certainly no evidence of regular use.

There are some neighbouring gardens that back on to our lane. A couple of the neighbours have installed gates in their fences. I've been advised that although I have no power to prevent them installing such gates (it's their fence/gate after all), it doesn't confer any right of way over our lane, even though the lane is clearly shown on old maps (actually maps that existed before the houses in question were even built). I have put this in writing to the householders so they are quite clear about the matter and that they have absolutely no right of way over our lane. This will (should!) prevent them from making any claim in the future.

Conversely, there are also some houses that do have a right of access over part of our lane and that right is enshrined in their deeds and also registered at land registry. That is the legal basis for their right of access.

I can see both sides of this particular issue. The OP thinks their right of way has been blocked and the neighbour thinks they are defending their property over which there is no right of way. Ultimately, both cannot be in the right, but I'm not sure that a simple map showing a path is sufficient evidence either way. I suspect that if the OPs deeds/land registration does not document a right of way over the land, then they will have to fight for the claimed right to be recognised by, for example, being able to prove regular usage of the path for the past ?? years (might be 20, I'm not sure). If such a claim was successful then the right of way would end up being registered at land registry. But it could be expensive, time-consuming and upsetting.

Alternatively, if the OPs deed/land registration already documents their right of way then it would seem to be an pretty simple matter; the neightbour has blocked their legal right of way and will have to remove it eventually - it will just be a question of how much pressure is required, e.g. verbal request, formal letter request, solicitor's letter, court order etc.