Right of way

[juliusjnr]

I live in a house built in the last 20 years. Large housing development. We're last house in end of terrace.

Our neighbours (A) who we are attached to have a right of way which is a path on edge of our garden with a gate in our fence leading to their garden.

All good, get on well with them, very polite rarely use, always let us know when they are using it.

Their neighbours (B) on their other side are link detached by B's garage. Access to their garden is through their garage or through house. However, when B did extension they converted garage into a utility room from the inside. If you look from outside garage up and over door is still there so not an official garage conversion.

I saw B on Sunday, having a quick chat as I said goodbye, he said oh by the way We're having our fence done this week, I've okayed it with A but they might need access through the garden. Fine, just let me know so I'll put dog inside.

When the gardeners turn up next day, B says they'd like to use the access rather than go through house. We say ok fine. I didn't realise they meant they would be walking through our garden about 40 times that first day. On several occasions they were walking across lawn rather than path as it was quicker. Dh was working from home and they left the side gate open and our puppy got out. Luckily dh grabbed him before he could run off.

The next day when they rocked up again I saw B and said, when you said access I didn't mean walking through all day long, they've left gate open, puppy got out, ask them to get everything they need so we're not disturbed. Yes ok. Ten minutes later gardeners coming through again, reiterate please get your stuff and don't through. Oh yes got everything we need. I was WFH yesterday and they still went through another dozen times.

Should have added they were fixing fence from A's side even though it was B's fence as that was 'easier' for them. I don't think they stepped foot in B's garden or house.

What I want to know is, can our neighbours A give their neighbours B permission to use their right of way which means them coming on our property? B did have access from his property but chose to convert his garage? Totally understand if it were A doing works they'd be perfectly entitled to do so. Thanks in advance.

A cannot give B permission to use the ROW. If they put a gate in the fence between A and B then you really ought to be having words with them.

Probably fair enough that they ask to use your garden to remove materials (we used two gardens at the back when we took down a tree in our back garden - it was invaluable) but they should be minimising the inconvenience to you, as you can withdraw your consent at any time.

Thank you Collaborate. That's really useful to know. To clarify, the gate is in the fence that is between our garden and A's and part of RoW access so all good there.

If this situation arises again, I will say no. Neighbour B was very cheeky, just because it's easier to use our access, well not our problem and if A wants to give permission to work from their side, well that's between them and doesn't involve us.

We actually get on fine with neighbours B too and I certainly don't want a big fall out over this but we don't want to be walked over. And we definitely need to get a proper bolt on our gate to make it inaccessible to others, apart from us and A. B actually let himself in our garden a couple of weeks ago when he was sorting out job. He did knock but dh didn't get to door straight away and when he went to back he said, oh we did knock but you didn't answer! Who does that. And A's dad let himself in yesterday too! He's elderly and not in great health so I didn't say anything.

In effect I withdrew consent yesterday morning but they continued. Certainly won't be happening again. Thanks again Collaborate.

If the ROW is for the benefit of A's property, then surely it can be used by anyone needing access to A's property. I'm assuming the wording includes visitors etc and is along the lines of 'at all times and for any purpose.'

So if A has given permission for the gardeners to do the fence work from his garden, then he can also give permission for them to access his land via the ROW (and likewise his dad).

B has no right to use it to access his own land, but it sounds like the gardeners aren't using it to access B's land even though they're his gardeners, they're using it to access A's land with his permission, which is essentially what the ROW is for.

I can see how it's annoying though. B definitely shouldn't be wandering in uninvited and people shouldn't be shortcutting across the lawn and letting puppy escape.

The gardeners can't use it to work on B's garden even if they spend much of their time on A's side of the boundary. Their ultimate destination is B's property, so they have no right to cross OP's garden without permission.

OP - you could get a lock in the door and give a key to A to use.

Even though OP states that they didn't step foot in B's garden? If they genuinely only accessed A's land then I would have thought they'd count as visitors to A's property and therefore could use the ROW?

Happy to be corrected - I don't want it to come across that I'm on their side as I'm absolutely not! They sound cheeky buggers so hopefully OP can just lock them out. Just trying to get my head around the technicalities.

Thanks nerdsville and thanks again Collaborate. If A and B had an agreement, why am I inconvenienced by it, which I was.

I get what you're saying about wording but all the properties have access to their back gardens, B doesn't because he 'converted' his garage and that access doesn't exist now. Also if A was happy, they could have brought the materials through B's house and then moved into A's garden to do the work. And leave me out the equation. I thought of that saying, not my circus, not my monkeys!

Collaborate, if I put a lock on and gave A a key could I say it is for their sole use and not to let 3rd parties use it for work not related to their property. I don't want this happening again and if it did would I be within my rights to lock it if they unlocked or not unlock it (they work long hours so wouldn't necessarily be there). And do I definitely have to give them a copy of the key. I could see them just giving the key to someone else to use if they weren't there iyswim? Thanks

Nerdsville, they worked from A's side as B has trees and shrubs up to the boundary and it would be tight to work that side I guess. I have to say I was surprised when I saw the set up. They started from the bottom of garden and I would guess if they'd gone from top to bottom they could have done it from other side.

I obviously don't know if they went into B's garden or house for sure, they didn't seem to but it is B's fence and they hired the contractors. Also my point is they had their own access originally and I suspect when the houses were built it was a requirement to have açcess to back garden that wasn't through the house. They no longer have access.

Oh I don't want you to think I'm defending B and his cheeky puppy-freeing gardeners - I'm on your side, I just wondered about the technicality of them being given permission by A to access A's land and whether that meant they were allowed to use the ROW even though they're actually employed by B.

B sounds like your standard entitled nobhead, blocking up his own garden access and just thinking 'not to worry, A's got that lovely ROW so I'll just help myself to that and inconvenience the whole bloody street any time I actually need to get anything into the garden!'

I've met a few of them in my time!

The frustrating thing is that if they'd shown you a bit of consideration (one or two trips instead of 50, keep to the path, shut the bloody gate) then I'm sure you'd have let B use it again in future if they really needed to. By behaving so inconsiderately they've upset a neighbour and burnt their bridges. People are so rude and annoying!!

Nerdsville I know you're not defending them. I was going to post in AIBU earlier in the week but didn't as I'm sure I would've been asked for a diagram and drawing isn't my strong point! Or told to ring 101 anyhow grateful to hear other's feedback. Off to look at padlocks.

The purpose of B's contractors entering your land is so that they can build B's fence on B's land. It matters not that they stand on A's land to do it.

I don't think you can say until you look at the wording on your deeds. The right of way running through our property gives right to our neighbours and assignees which means they can give anyone else they like the use of it. This means their delivery men, workmen, visitors etc all have the use of it and if they happened to let their neighbours too then that would be permissible.

You could be creating a legal problem if you put a padlock on so hold fire until you've checked.

Collaborate do you actually know this (i.e are you a property lawyer with knowledge of some statutory provision or case law?). I'm only asking because our right of way was the subject of a neighbour dispute before we moved in and both DH and I are lawyers and have seen the files and so have seen how complex it was to advise the previous owner of our property.

This was some time ago (8 years) and so there may well have been case law (neither DH nor I specialise in property) which has changed the position or which we don't know about. If so Id be really interested to know since one of our far neighbours is a commercial business and their customers and members use our right of way (because another neighbour has said they can) which drives me mad. However, if you're just guessing then you really should say so and not advise the OP in such certain terms.

I am a family lawyer but have an interest in property matters. I'm not just guessing.
Alvis v Harrison 1991 -it makes no difference whether the dominant land and the additional land using the easement are owned by the same person or by different persons; an easement is granted for the benefit of the dominant land, and must accommodate that particular land.

Peacock v Custins - 2001 -a right of way expressly granted in favour of a field could not also be used to reach a neighbouring field even though both fields were being farmed as a single unit.

Das v Linden Mews Lts - 2002 - two owners had a right of way over a road to their respective houses. They began using a separate garden area that lay between the houses for car parking. The Court of Appeal held that access to the garden area was not necessary to access the dominant land. Access to the garden area for parking was a separate use not sufficiently connected to the dominant land.

Massey v Boulden - 2002 - Dominant land owners built an extension, beyond the dominant land boundary. Servient owner said that they should not be allowed to use the prescriptive ROW to access the extension. Court found that the use of the extension was ancillary to the dominant land, so it was allowed.

This is perhaps a useful case to consider - although only High Court is summarises the law in this area (copied and pasted):

Macepark (Whittlebury) Ltd v Sargeant, 5 March 2003 (High Court, Ch Div).
Examining the sometimes contradictory case law on the ancillary use of a right of way in connection with land that is not the dominant land, the judge in this case concluded: (1) the use of a right of way in connection with non-dominant land may be within the scope of the right that has been granted, if the use is not 'in substance' for the benefit of the non-dominant land; (2) to satisfy this test, either the extent of the use for the benefit of the non-dominant land must be insubstantial, or there must be no benefit to the non-dominant land resulting from the use of the way and (3) 'benefit' includes the ability to extract profit from the non-dominant land by reason of the use of the way.
On the facts of this case, the use in connection with the non-dominant land was both substantial and for the benefit of the non-dominant land.
Background
A right of way may only be used for gaining access to the dominant land: a right of way granted for access to Whiteacre, cannot also be used 'in substance' for access to Blackacre (Harris v Flower (1904) 74 LJ 127). In the case of an express grant, the extent of the dominant land is a matter of construction, in the case of an implied grant or an easement that arises by prescription the manner and extent of use before the grant or during the period of prescription will be relevant to establish the extent of the dominant land.
Recent cases have considered whether, and if so to what extent, there may be a doctrine of 'ancillary use' of a right of way which allows use in connection with land that is not the dominant land: that is, the extent to which the reference to 'in substance' in Harris v Flower may qualify the underlying rule that an easement has to be used for the benefit of the dominant land (for example, National Trust v White [1987] 1 WLR 907, Peacock v Custins [2001] 2 All ER 827, Das v Linden Mews [2002] EWCA Civ 590 and Massey v Boulden [2002] EWCA Civ 1634). These cases conflict.
Facts
The case concerned a proposal to build an access way over private land to the Silverstone Racing Circuit.
The owners of the Hotel Site (the dominant land) had a right of way over the Existing Path for access to the Hotel Site from the A413 main road. The owners of the Hotel Site wished, with the agreement of the owners of Cheese Copse, to construct the Proposed Access Way over Cheese Copse. This would give access for people staying at the hotel to the Silverstone Racing Circuit. Cheese Copse and the Silverstone Site were non-dominant land for the purposes of the original grant.
The hypothetical use of the Existing Path that the court had to consider was where a visitor to the hotel drove over the Existing Path and then later drove over the Proposed Access Way to the Silverstone Site. Would that use of the Existing Path be for the benefit only of the Hotel Site only, or would it also be for the benefit of Cheese Copse and/or the Silverstone Site?
Decision
The deputy judge, Gabriel Moss QC, reviewed the sometimes conflicting authorities on whether a right of way may be used for the benefit of land that is not the dominant land. He concluded:
There is a doctrine of ancillary use of a way in favour of non-dominant land (Massey v Boulden [2002] EWCA Civ 1634 and Peacock v Custins [2001] 2 All ER 827).
Ancillary use of the way must not be used 'in substance' for the benefit of the non-dominant land (Harris v Flower (1904) 74 LJ 127).
Use of the way is not in substance for the benefit of the non-dominant land if:
Either: the extent of the use for the benefit of the non-dominant land is insubstantial.
Or: there is no benefit to the non-dominant land (resulting from the use).
Use benefits the non-dominant land if the access makes the non-dominant land profitable.
It makes no difference whether the dominant land and the non-dominant land are owned by the same or by different persons (Alvis v Harrison (1990) 62 P&C R 10).
Applying that analysis to the present case, and whether looking at the question as a matter of construction of the original grant or as a matter of the essential nature of an easement, concluded:
The hypothetical use of Existing Path would be for the benefit of Cheese Copse (since the owners of Cheese Copse could charge a fee for driving over Cheese Copse) and would be for the benefit of the Silverstone Site (the Proposed Access Way would not be the only access to the Silverstone Site, but an additional access was a benefit).
The use of the Existing Path for the benefit of Cheese Copse and the Silverstone Site would alter the nature of the use of the Existing Path and its use would become in substance for the benefit of the Hotel Site (the dominant land) and Cheese Copse and the Silverstone Site (non-dominant land).
The use of the Existing Path as envisaged would not, therefore, be ancillary use and would be outside the terms of the original grant.
Comment
The deputy judge in this case was constrained by the various Court of Appeal rulings concerning ancillary use and had to reconcile them.
'Benefit' will not necessarily only equate with profit: benefit includes profitability. In a domestic context a wide concept of profitability would presumably be needed.
For the future, the application of the principles set out by the deputy judge may well involve difficult questions of fact and degree.

Newtssuitcase - When you say "our ROW" do you mean you have the benefit of a ROW over someone else's land and others are using it who have no ROW? Or do you mean property A has a ROW over your land and others are using it?

Its our land and five houses at the bottom of the lane can use the right of way. They all have alternative access but chose to go over our property since the other access has speed bumps. Another particular issue is that one of the properties is a private members club and as such an additional fifty or so people have access across our land...

I am considering also installing speed bumps..

If what you mean is that you own the land, and 5 other properties have a ROW over it, you can take an action in trespass to prevent others using it. If they have a ROW they can use it however they want (assuming the ROW has no restrictions). If the business is one of the 5 with a ROW you need to look up the law relating to excessive user.

If what you mean is that you and 5 other properties have use of a ROW over land owned by someone else, only the landowner can prevent others using it.

No, as I've said it's our land. Property lawyers have poured over it before our time and so it is what it is basically. Anyway this is hijacking the OP's thread.

OP I think you need to check your deeds.

Thanks again Collaborate. Newts, yes I will check deeds later. As B had access but doesn't now I don't think he should assume access previously I would like to think the Row

Do your deed specify what rights Neighbour A has over your land, and indeed, over which part of you land he has thse rights. We have two rights of way over neighbours land. One grants us the right to "pass and repass" over a specified grass path immediately adjacent to the boundary line between our properties. The other grants us the right to wheelbarrow in certain agricutural waste-products along a concrete path in a second neighbour's property, and through a gate expressly created for that purpose in the fence. Nothing else, as we discovered when we first tried to use that RoW as a way out to the road to go for a walk.

Julius

If you had posted inAIBU I would have directed you to a website called gardenlaw.co.uk where people who actually understand the law regarding this situation help people like you

Fortunately you've already had advice from one of them, Collabrate is very well respected in this subject

Thank you for the replies. Schroed I will look at garden law. I posted yesterday without finishing.

Anyway I look at documentation which I think are deeds, couldn't see anything every specific, some similar wording that was mentioned up thread so need to have a closer look at the weekend.

I saw neighbour A yesterday and told her we are putting a bolt on gate and she can walk round and unlock or ask us to but we're not happy with others using it in the way it was this week. She wasn't really sure what was agreed with her H as she wasn't around but saw my point.

Think I need to chalk it up to experience and not be so accommodating next time. As I said we get on fine with neighbours and would like it to stay that way but this was a stretch. Thanks again everyone.