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About access over our land...

(68 Posts)
YellowDinosaur Sat 13-Aug-11 21:06:51

Cross posted to legal but higher traffic here so hoping for some advice...

We live on a new build estate in a town house on the end of a terrace of 7 similar properties. We all back onto a shared back lane that our detached garages also adjoin. We each own the portion of this back lane that is adjacent to our back gardens as well as the strip immediately in front of our garages. But access is guaranteed to the other 6 houses in the terrace to get in and out of this back lane. There is no gate accross this lane though so it might not be immediately obvious to others that this is private land. If it si relevant we are on the end of the terrace where the access point to the back lane is - the other end is blocked off by garages.

With me so far? Good.

Next to the entrance to the back lane is a detached house who has a driveway on the other side of their house. They have a wall to their back garden that adjoins this back lane and our garage / area immediately in front of our garage. They do not own or have right of access onto our shared back lane.

Recently new people bought this house and they are in the process of extending it and landscaping the garden. Today it was pointed out to me that they have put in a gate out of the back of their garden that leads into our back lane and opens onto the area immediately in front of our garage (so land belonging to dh and I). They will also have to cross 2 other neighbours land in order to get out of the back lane as well as ours.

Now dh and I are both reasonable easy going people. In principle we don't mind these people having access over our land in a way that will not impact at all on our quality of life, assuming that they too are reasonable people. And from talking to our other neighbours apparently since it has been pointed out to them that this is private land they have tried to come and speak to us but we have been out.

Our concern however is that if we were to sell in the future that if we have allowed this to go on it may affect the sale firstly because prospective buyers may decide that they don't want to allow this access and secondly because if we allow it I seem to remember there comes a point when because it has been allowed it must be able to continue.

Can anyone put me right on the legalitites of this before we go and talk to them tomorrow? In principle we don't mind but don't want to be setting any precedents that we couldn't over turn if we wished to sell and the future buyers didn't like the set up. Are we unreasonable to be worrying about this?

YellowDinosaur Sat 13-Aug-11 21:16:34

Just realised title of thread makes it sound like I have a mahoosive country estate or something blush

Its a drive (and a small one at that) not a wood or an orchard or several acres of field grin. Pretty please I'd really value your opinions!

microserf Sat 13-Aug-11 21:17:36

i have no idea for the legalities, but i'd be very worried about letting such an arrangement stand. personally, i'd seek some advice and have a word Monday or Tuesday.

you definitely aren't being unreasonable to worry about it as a future buyer may be much less relaxed than you about their using your land as an access way.

Happymm Sat 13-Aug-11 21:18:13

I don't think YRBU. Am not 100% sure but I think that if access is used and accepted for ??10?? years, then the precedent has been set and it becomes a legal right of way.
Maybe get a free 30mins with a solicitor and check things out properly.
Good luck.

YellowDinosaur Sat 13-Aug-11 21:20:27

Nice to hear that we're not being precious about this and others have concerns too...

Happymm that is what I thought too hence my concerns. We're not about to move anytime soon so it will be after several years. Don't want to find that this has become a right of way because of us being amenable to a neighbour and that this then affects our house sale

MissFenella Sat 13-Aug-11 21:23:48

If they want access to your land and you are happy for them to have it then - charge them market value for the access.

If not tell them no, and block their access by putting something on your land that does this - a fence maybe.

If they continue to use it they can eventually claim rights and stop you doing what you want with that bit of land.

Sandalwood Sat 13-Aug-11 21:24:28

Not that it makes a difference, but is it a gate for pedestrians or vehicles?

YellowDinosaur Sat 13-Aug-11 21:34:09

MissFenella we had already decided that it they turned out to be tossers we could just stick a fence in front of their gate and they could do not a thing about it grin

It may well be our fence (or at least a jointly owned one) that they have cut in half to put their gate into although personally I think it is probably theirs. can't find contract from when we bought house at the mo though although it must be in our filing cabinet SOMEWHERE but I have lost the will to keep looking for now...

Sandalwood it is a pedestrian gate. The bit of fence they have put it into that adjoins our drive is approximately twice the width of this gate and the rest of their garden abbuts our garage wall. From talking to other neighbours who share the back lane who have spoken to them they want this acess to put their bins out since the extension they are planning will block off the existing gate that is between the back of their house and their detached garage, which is on the other side of their house from the back lane. Not spoken to them ourselves though so we'll get the info from the horses mouth tomorrow...

BBQFrenzy Sat 13-Aug-11 21:37:53

Adverse possession was 11 years of continual use by someone other than the owner (this is v rusty by the way - property law was only part of my undergrad degree and this was 14 years ago).

Have you spoken to the other two neighbours? Because if any of them is an adamant no, then you don't need to spend any more time thinking about this.

I think if all 3 of you were to consider this you could look at drawing up some kind of licence which you grant to them (you decide when it is renewed) and they give you some kind of consideration (£50/£100 p.a. - but entirely up to you to set your price) with any conditions of use you might want (e.g. no access between 11pm and 9am or whatever if there was any sense you might be disturbed by noise - you need to know what kind of use they are expecting - long term builders' access for example?). If you want to consider this then they should pay your legal fees in getting this drawn up and get some quotes.

May all sound like a lot of faff but it would mean that you could agree to their use but retain a certain degree of control that should it prove problematic, access is no longer granted. This would mean that you were under no obligation to renew if you were selling although I suspect that you would have to pass the details of the previous licences granted (if none current) to the neighbours.

<OP please wait for a proper property lawyer to pop up! There must be a smoother way than my surmising above!>

YellowDinosaur Sat 13-Aug-11 21:42:31

Thanks BBQfrenzy that is helpful.

I have spoken to one of the other neighbours affected who is not bothered and she tells me that the other is not bothered either.

Dh and I have talked about some sort of legal agreement stating that they are allowed acces but that it is only an agreement between the 4 relevant property owners that become void and will need to be renegotiated at their (or their purchasers) expense at any time a new owner of either of the 4 properties in involved. Any specific conditions could be laid out.

For example I would be absolutely and totally opposed to builders access. They have their own double driveway to the other side of the property and our small children use the back lane for playing in which would not be safe while builders were accessing it.

Tillyscoutsmum Sat 13-Aug-11 21:46:21

You (and your neighbours) can get an Easement document drawn up which will legally give them rights of access. You could impose certain conditions on it and its not unreasonable to expect them to pay for both the benefit of the easement and any legal/Land registration costs which you will incur.

As someone else said, if you let it happen as an informal arrangement, then they would obtain a prescriptive right of way after 20 years of use (not Adverse possession - they won't own the land, they will just be legally allowed to use the right of way). The upshot is the same but if its done formally, it enables you to get some payment for it and it makes things clearer and simpler if you do sell in the future.

Tillyscoutsmum Sat 13-Aug-11 21:49:40

Sorry - prescriptive rights are only obtained if the right of way has been used without permission so is not relevant here. Its still much more straightforward to get it formally documented.

Tillyscoutsmum Sat 13-Aug-11 21:50:57

Oh - and an Easement (Right of Way) relates to the property not the property owners, so there would be no re-negotiation in the future if any of the properties are sold

SuchProspects Sat 13-Aug-11 21:54:25

We had neighbors with access across our land a while ago. They wanted to change it to a route we didn't mind but thought might impact our ability to sell. Our lawyer advised us to draw up a contract with them that let them rent this access from us for a nominal amount (£1 a year). This way they aren't gaining any rights and you have the ability to hold them accountable if they start to abuse the access.

Since it's access that others have anyway you might be able to arrange for them to buy their way into joint ownership or something rather than a rental agreement you have to stay on top of. If you go this route you need to address ongoing maintenance. The driveway won't need redoing often, but it will be very, very annoying when it does and they (or the people who buy the house after) don't pay up because they don't have to.

Plus, as others have said, talk to a lawyer. It won't cost much and it could save you a lot (you may even get some free legal advice through your home insurance policy).

fedupofnamechanging Sat 13-Aug-11 21:55:33

I'm pretty sure you can get something drawn up to say that you grant them permission to use this, but do not give up any of your rights in doing so and can withdraw permission at any time. You could ask your solicitor to include a no access bit regarding builders.

Personally, I wouldn't allow access. It sounds petty but they knew when they bought their house what access they had. It's arrogant to assume they can just use your land because it suits them and to put a gate in before even speaking to you assumes a great deal.

This could turn out to be a hassle to you and at the very least will cost you in legal letters to assert your own rights. Why should you be out of pocket so they can gain? I'd say no and have done with it, regardless of whether the other neighbours are okay with it or not. Perhaps they don't know about potential legal implications and it does sound as if it affects you more than them anyway.

biscuitmad Sat 13-Aug-11 22:10:31

When you speak to your new neighbours ask them whether they obtained persmission for the gate before putting it in. Tell them what part of the land is yours and then just leave it for awhile. Maybe the previous owners told them the land belonged to the house.

I personally would ask them to remove it, when you go to sell your house its going to make it awkard and it will put people off.

YellowDinosaur Sat 13-Aug-11 22:11:09

Thanks for all your helpful comments and advice. Its interesting to see that others would be against this too - when that was my first instinct I thought I was being unreasonable!

I don't want to be a difficult obstructive neighbour (and from what other neighbour has said they didn't realise this was private land so I don't think they were presuming anything) but at the same time I can't be doing with difficulties in the future because we've tried to be accommodating.

You've given us some food for thought to discuss before we go and see them so thanks

mummymeister Sat 13-Aug-11 23:02:23

Being blunt - don't ever allow anyone access to your land informally whatever the circumstances. see a solicitor on Monday or go to CAB locally for free legal advice. if they want access then have a properly drawn up legal agreement it will cost you a couple of hundred quid which you can ask them to pay but you have to safeguard yourself and your asset

HansieMom Sun 14-Aug-11 02:04:14

So they want a gate so they can bring their garbage bins across your driveway? I wouldn't like that, just wouldn't! Maybe they'd store them on your side, or be lax about taking them back onto their side of the fence.

Mitmoo Sun 14-Aug-11 06:52:50

For the record Prescriptive Rights are gain if the land is used with the owners knowledge or permission. If access is being gained secretly say during the night when the owner wouldn't know about it, that would be very hard for a person to claim prescriptive rights.

I nearly lost a part of my back garden as neighbours claimed to have driven over it for 20 years, if they weren't lying through their ever so old teeth, they'd have won and I'd have lost the right to use that part of my garden for my own purposes for ever.

If you can place a full year where the land hasn't been used during that 20 years then they can't claim prescriptive rights as it has to be continuous.

Don't allow youself to get into that kind of a mess, it was a nightmare, get some legal advice while it will still be very cheap to do so. WH Smith might even have a rental template that could be worth looking at.

WorkingItOutAsIGo Sun 14-Aug-11 08:16:02

You know the saying...good fences make good Neighbours.

They've done something they should not have in the first place which sets a bad precedent for what they might do in future, I would be saying no, not giving them rights.

ShoutyHamster Sun 14-Aug-11 08:56:54

Do you know, I would be very wary about this simply because of their actions in cutting up the fence and putting a gate in BEFORE speaking to any of their new neighbours about it!

That is really not a good sign. Yes, they have tried to get in touch when it's actually been pointed out to them that they are intending to trespass - but I would have thought it pretty obvious that genuniely good new neighbours would be calling round BEFORE doing anything like putting a gate in and creating a new access. I think they sound deliberately disingenuous - they have just bought the property, I suspect that their deeds make it clear what access they have, and that the land behind isn't public.

They will sound ultra reasonable and friendly now, but I really think that what they have done has already way overstepped the boundary (fnarr!) and I'd be suspicious.

You say that it'd be easy enough to put a fence back up if there was trouble, but if you've not complained about the fence before, I'm not sure it would be that straightforward, and they could easily then turn out to be the most arsey people in creation (you know, the kind who put in new access points THEN ask the neighbours if it's ok). And you can say 'no builders' etc., but in practice little encroachments on whatever conditions you set are massively irritating but hard to take up with people when they sound trivial, and that is stressful.

I would make my life much easier here and would go around very apologetically and say you're SO sorry but as your aunt/cousin/milkman had a similar situation and ended up losing money on their house when they sold it, that you don't feel comfortable with the situation, and could they please reinstate the boundary fence. It's so much simpler.

ShoutyHamster Sun 14-Aug-11 08:57:49

Just noticed that WorkingIt made the same point above and ^much more succinctly* grin

HeadfirstForHalos Sun 14-Aug-11 09:29:16

I wouldn't allow it either, the fact they have already put the gate in without asking would rile me and makes me wary they could cause problems.

schomberg Sun 14-Aug-11 09:32:38

Stand out the back of your house shouting "get orf my land" while waving your swagger stick/riding crop/shotgun. Failing this, send for the hounds.

Sorry, I have nothing constructive to add.

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