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Access

including wills and probate
Leothebear
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Access

#498097

Postby Leothebear » May 3rd, 2022, 7:47 am

My house backs on to a field. The field is now a vineyard. A hedge runs along the border. At one edge there is a old overgrown gate, hidden in the hedge. The gate has not been used in 25 years or more. When I bought the house 22 years ago I was told that the field owners had right of access to our driveway via the gate. The owners of the field have changed since I moved here.

In view of the time lapse, could I challenge their right of access? I'd love to put an outbuilding if front of the old gate if possible.

Would appreciate any advice.

Thanks

Leo

DrFfybes
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Re: Access

#498101

Postby DrFfybes » May 3rd, 2022, 8:51 am

What do the Deeds to your property (and to theirs) say about the issue?

That will be a good starting point, however note that the online records held by LR (available for £3 per plot) do not always contain all the covenants that are on the printed copies, especially for older properties. Our place dates back to about 1780 and was sold off from the farm estate over 100 years ago, and there are a lot of old bits of paper with coloured marks on showing rights of access and easements, mainly for our benefit that do not appear on the Official Copy.

These are also now all scanned in :)

Paul

UncleEbenezer
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Re: Access

#498165

Postby UncleEbenezer » May 3rd, 2022, 12:27 pm

Wouldn't a change to access rights imply a change to the deeds? Both yours and the neighbour with the access right?

On the assumption that you'd use a solicitor to deal with that anyway, (s)he would surely be the one to advise on the legal issues?

Leothebear
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Re: Access

#498190

Postby Leothebear » May 3rd, 2022, 2:25 pm

Thanks - I asked with a vague recollection that if access had not been used for a long time, access rights may have expired. I think I can assume that's not the case.

Dod101
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Re: Access

#498191

Postby Dod101 » May 3rd, 2022, 2:38 pm

Leothebear wrote:Thanks - I asked with a vague recollection that if access had not been used for a long time, access rights may have expired. I think I can assume that's not the case.


I think this may be a case for CK to comment on if he will. I can be of no help as I live in Scotland but I too had the impression that if access has not been exercised for a long time, they may have been forfeited. It works I think the other way. I had use of a lane where no one had claimed access or ownership for more than 25 years and I was able to claim ownership.

Dod

UncleEbenezer
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Re: Access

#498239

Postby UncleEbenezer » May 3rd, 2022, 5:39 pm

Leothebear wrote:Thanks - I asked with a vague recollection that if access had not been used for a long time, access rights may have expired. I think I can assume that's not the case.

That is - or at least was - the case in establishing the network of public footpaths and bridleways. A right of way that had fallen into long-term disuse could expire, which may have fed your recollection. I understand that was a major motivation for the establishment of the Ramblers: they'd walk the footpaths including those that were made difficult - thick brambles, deep mud, high fences, etc - and document the act to establish use.

IANAL, but I'd be mildly surprised if your situation were legally equivalent to theirs.

If what you're proposing is eminently reasonable, there are probably legal options to get around it. Perhaps for example with access that gets around your outbuilding, should the neighbour (or their successor) ever demand it. But obviously that would be for a lawyer to advise.

Clitheroekid
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Re: Access

#498442

Postby Clitheroekid » May 4th, 2022, 2:04 pm

I’m sitting in Milan Airport, awaiting a flight to Lisbon with well over two hours to kill, so any diversion is most welcome!

Unfortunately for the land owner, it’s really quite difficult for the beneficiary of a right of way to lose it - ‘abandonment’ as it’s called.

Mere failure to use a right of way is not sufficient by itself, and abandonment will not be inferred. The owner must make it clear that he is abandoning the right not just for himself but also for subsequent owners of the land.

In the 1992 case of Benn v Hardinge the Court of Appeal said that the failure to use the right for 175 years was not enough by itself to prove an intention to abandon.

There is an assumption that the right has been abandoned where the original character of the land with the benefit of the right has changed to such an extent that the right of way has become unnecessary or impossible to exercise.

But this is only a presumption and can be set aside by the owner proving that the original character of the land can be restored so that the need for the right would be revived.

In your own case it would seem very unlikely that you could prove abandonment. However, if the proposed outbuilding is relatively cheap to construct, and could be moved - e.g. a garden shed - it might be worth building it anyway. The longer there’s no objection from the person with the right of way the stronger your argument would be for abandonment.

didds
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Re: Access

#498459

Postby didds » May 4th, 2022, 3:49 pm

What does the vineyard opwner say about their potential/probable use of the access?

I woldnt be at all surprised that they don't even know its there.

and purely OOI, whose boundary does the (overgrown) gate sit on? Is it "your" boundary or "their's".

Our garden is surrounded on three sides by the neighbouring farmland (4th side is the road). The south and west boundaries are "ours" and thus up to us to maintain. the north boundary is the farm's. After we moved in, we asked and were given permission by the farmers to access their land for dog walking. To this end we put a gate in the south boundary (fence/hedge) ie our boundary to enable the access.

That farmer eventually moved on. I had an amusing conversation with the land agent that was selling the land subsequently, when he asked about the gate, and i explained. he then demanded that we remove the gate and make good the fence etc. I explained that the boundary was ours which surely as a land agent he must have known, and that we weren't prepared to remove it . I did say though that naturally the purchaser of the farm had every right to erect their own fence inches inside the boundary and thus on their land to prevent us using the gate for any access etc if they were vexxed. The new farmer after he'd bought it laughed at the land agent when we explained, called them a lot if less than polite names, and extended the previous farmers invitation to us again to access his land for dog walking .

didds

NomoneyNohoney
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Re: Access

#498471

Postby NomoneyNohoney » May 4th, 2022, 4:56 pm

CK said, "I’m sitting in Milan Airport, awaiting a flight to Lisbon with well over two hours to kill...In the 1992 case of Benn v Hardinge..."
Do you have scanned copies of your reference books on your phone, or do you simply have a prodigious memory? Or is it Uncle Google at work?

UncleEbenezer
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Re: Access

#498559

Postby UncleEbenezer » May 5th, 2022, 12:54 am

didds wrote:What does the vineyard opwner say about their potential/probable use of the access?

Very likely nothing.

The same cannot be assumed for a future owner of the land. Nor for a buyer's solicitor, whose job it is to take a professional interest in any such rights and raise a red flag if some neighbour has created a problem.

Possible analogy: if you do competent DIY with your house's electrics, all may be well. But when you (or your executors) come to sell, it's not certified safe and that becomes a problem.

CK said, "I’m sitting in Milan Airport, awaiting a flight to Lisbon with well over two hours to kill...In the 1992 case of Benn v Hardinge..."
Do you have scanned copies of your reference books on your phone, or do you simply have a prodigious memory? Or is it Uncle Google at work?

:lol: :lol:

Good point. But there might be other explanations. CK being a solicitor doubtless encounters a lot of historic cases in the course of his work, and may find some particularly memorable? Or google can help fill in details if one has a partial recollection of something.

didds
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Re: Access

#498604

Postby didds » May 5th, 2022, 10:44 am

UncleEbenezer wrote:
didds wrote:What does the vineyard opwner say about their potential/probable use of the access?

Very likely nothing.

The same cannot be assumed for a future owner of the land. .



Of course. But if the current owner expresses zero interest then it at least kicks the can down the road.


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