TRESPASSING - PLUS A FEW OTHER QUERIES!

[balliu]

Hi all,
We have a property which has a private right of way on the ground floor of our property (similiar to a coach house) so that only our front door and hall are on the ground floor. Since living here for 2 yrs, we have culled the excessive usage of the access way considerably with the help of Land Registry & solicitor letters, by identifying who has rights and who does not. As it was an 'open' access way it was being used by everyone, for all sorts of things legal and illegal, as you can imagine. Now we have 3metre gates up, after a bumpy ride with the other users, things have calmed down to the point of being quite a nice place to live.

Unfortunately, one man who owns a property next door continues to use the access way to get to the back of his house (as the access way leads to a yard and a small passageway which is behind his property). He drives cars, vans through and loads/off loads a multitude of things. He doesnt live at the property, as he is landlord, and we are sure that the tenants use it too. When we sent solicitor letters and private letters to him his usage resided, but we have come to the conclusion that he just uses it when we are not at our property.
He doesnt pay maintenance for the access way and the usage is not in his deeds. It just states that he has use, from the back of his house to the passageway, not via the access way and is very clear. He is abusive, and has dumped things in the yard, and under the house in the past. Two years ago, when we moved here, he even told his tenants that our house was his, and we were his tenants!
His tenants are/where awful - drug takers, and found that the dark access way ideal for their nocturnal dealings. Sounds awful.....and yes it has been, but now that the house is finally on its way up with renovations, etc things are getting better. And its good that these people have worked out that we mean business.
I am about to sent him a final letter, to warn him of continuing the usage of the access. I just dont know how to stop this man using the access, and am considering a court injunction.
If he ever hit our house corners, driving in or out of the access way we dont have any rights to demand monies.
We do not want him to start all that up again - what is the way forward?

Firstly:
1. is the court injuntion the only way forward?
2. police have been involved before - can I call them out on a trespass call?
On another note:
1. Party wall law - can I 'rest' part of some scaffolding on a neighbours roof without asking them? Is is my right?

Any info greatly appreciated - and sorry for the long message!

 

[glayzell]

tresspassing is not a criminal offence, it is what someone does while trespassing that could be illegal. This is my understanding.

As far as i would suggest, you would be better off talking to the man and asking him not to use it. Any official complaints etc you would have to declare to a future purchaser if you sold your house.

If this doesnt work, the only option would be an injunction, these are not terribly expensive, but you would have to prove 'on the balance of probablitly' that this person way using your right of way. you may therefore want to police log numbers, video evidence, make notes etc to make life easier for you if you were to take the matter before magistrates.

Obviously the court route should be the last route.

 

[jess marley]

go to http://www.gardenlaw.co.uk

good site for all of these issues.

 

[thiambal]

You may also have to bear in mind that if he, or the owners of the house in question have been using the passage for some time without opposition they mey have acquired a right of way in common law!

A pience of rough land near our office which is used as a cut through has recently had No Right of Way signs added - this has not stopped people using it but it does mean the owner will be able to build on it in the future with people claiming that a public right of way has developed across it.

 

[Nemesis]

I'm sure this one has come up in the past... or it may have been an very similar one on Garden Law.

Try giving all legitimate users a key, and locking the gates.

 

[glayzell]

it is true that your neighbour could state that they have a right to use the land as they have done so for the past 12 years unobstructed- i think this is true, or if they can prove the right of way was used before 1925, as before this date rights of way did not have to be recorded on deeds.

So in theory if there is some old person out there who says, 'yeah, when i were a lad i used to hump coal accross there every tuesday,' you may be in trouble.

I am on the lookout for a similar miracle myself, only the boot is on the other foot, someone is preventing me having access down an alley which was built 100 years after my house was. In my case i can see no reason why i could not use the access, so i will use it until they slap an injunction on me.

 

[Nemesis]

No, it's not 12 years to claim a prescriptive right - it's 20.

Not sure about the pre - 1925 Law of Property Act bit either - it's not so simple.

 

[thiambal]

Our 1903 house has the right of way along the rear (no jokes please) marked on the deeds - not sure if that bug**rs the 1925 theory or not.

 

[Nemesis]

Your RoW is probably an easement. In which case its on your deeds, presumably registered with the Land Registry, and cannot be tampered with. The problems often arise when what uses you can actually put the RoW to, its width, etc aren't too clear.


I would certainly not rely on thinking that anything pre 1925 is fine without a great deal of proof!

 

[Lime]

ROWs are nothing but trouble and I would avoid property with them like the plague.
Putting any impediment in the way to stop trespassers using it can be construed as obstructing the free ROW for the rightful users.
I think you need to have the rightful users on side if you are going to sort this out properly.
You also need to sort out what the ROW allows.
Even so this nextdoor landlord may well have some right of use through the passing of time.

 

[Nemesis]

If this is a private RoW, the owner of the land is entitled to put in place a gate, and lock the gate, as long as those who are entitled to access have a key.

They are under no obligation to lock it after them, but if all are agreed then it can be a useful way to deter intruders.

If the other person considers he has a RoW by prescription, it is then up to him to make a case and prove it.

Re scaffolding - no you certainly can't!

 

[Manny]

No, it's not 12 years to claim a prescriptive right - it's 20.

Not sure about the pre - 1925 Law of Property Act bit either - it's not so simple.

Correct. Sixty years if the act is carried out on land belonging to the crown or church.

Have you tried the environmental health people? They respond to anything that can be deemed a nuisance. They were very helpful when I had irritating noisy neighbours.

 

[balliu]

Hi, thanks again for the advice.

Can the environmental people help then? I thought they were just for noise...and even then, youre sent a log book to fill out for the next 10 yrs!
Not only the access way irritance, I have a worsening damp patch in my hallway, which is coming through from the same mans house. He doestn live there, but rents it out.
As they are all renters they arent bothered at all. I cannot approach this man, the owner, as we have this problem about the access way. What can be done?
All in all, this man is a nuisance!! Access problems, dodgy tenants, and a damp patch!!
Help....!

 

[Manny]

All in all, this man is a nuisance!!

Then there's no harm in contacting the Environmental Health. If they can't do anything for you (and I'm not saying that they can't) I'm sure they'll know someone who can.

As I recall it was fourteen days of recording the problem and sending that information to them. After that they had your record on file and could respond as soon as there was an incident taking place.

I have a very dim and tainted view of any council’s efficiency in any matter whatsoever, this experience was pleasantly surprising though. It's good to know all that money they make us throw at them does get used for some good services.

 

[Penners]

Try giving all legitimate users a key, and locking the gates.

If this man definitely has no legitimate RoW, then surely Nemesis has the logical answer. Lock the bu**er out.

 

[Nemesis]

And if he insists, tell him to put up or shut up - and he will have to prove conclusively to the Land Registry, via Statutory Declarations and other means, that he has a claim. A letter from a solicitor, saying that, is required , sent recorded delivery.