Land rights

[Housen]

There’s a no-man’s land back passage running behind three terrace houses (1,3,5). We own no. 1 (recently bought) our neighbours own 3 and 5 (yes they own 2 houses!)

Neighbours have put a locked gate on the passage and claimed it as their own. They store their bins and bikes back there- including in the space behind our garden.

We asked if we could store our bins there too - there’s space for at least 2 more bins without blocking the way. (Also our garden is much smaller than theirs and we have three small kids- they have one 15 yr old).

Neighbours have said no. They have said since they’ve been using this passage as theirs only for years (because they put a locked gate on in) , it’s now legally their property and we have no right of access and they are not willing to share.

Do we have any leg to stand on here? I’m guessing not but thought I’d consult the collective wisdom of mumsnet..

What does the documentation in connection with your house purchase say?

Also look at the Land Registry entry

I had a house with a similar set up. In practice we didnt use it until we had building work done when the builders were taking machinery & materials in and out

No, blocking it off without query or complaint from other would be users is all they need to demonstrate sole use.

If you can access it from your garden, start storing your bins there - then it's not solely being used by them. Then each bin day go and ask them to unlock the gate so you can take your bins out. Just stand there waiting and point out you need to get the bins outside and they're too heavy to take through the house. Offer that if they can't find the key you can remove the lock for them and add a combination lock.

What is the route to the gate from the front of the property? Is there an alleyway to walk down first?
A diagram showing the layout please

Who owns your back boundary? Could you put a gate into the back access? That would immediately undermine their claim. Don't know about the legalities of doing this. Perhaps someone on here is knowledgeable.

Might be an easier solution then going toe to toe legally and then get it registered while you are working on it. Presumably they have no right to stop you if they don't own the land or the boundary currently?

Yes we could do this as we own the boundary wall. But obviously they would see what we were doing and would be a bit nuclear 🥴

There's literally nowt they can do about it, unlike them refusing to give you a key to the gate. Reverses the power balance somewhat.

My concern is that they will get the area registered to them before you can do anything about it. I've seen several examples of local authorities failing to follow procedure for things like this due to admin error or just overworked etc. if the letter informing you fails to get to you for some reason then that silence will be permission and I doubt any other house will care enough to object?

its something you could bring to bare if things got nasty anyway.

I don't know were you get ' by definition ' from. If it is an old property, they often had a passageway at the rear for access, this is Very common. If there was an easement then the neighbours putting a locked gate in it would not over ride it. This could potentially make the op an party with a vested interest. It needs looking into careful and from a historic point of view to establish what the original purpose of the alley was and did that purpose benefit the OPs property.

@Brahumbug easements are created by express grant, implied grant, proprietary estoppel or prescription.

An express grant has not been given, since that would have to be completed by registration.

An implied grant may arise on the disposal of land by party A to party B, which also does not apply on the facts the OP has given. The alleyway has not been disposed of by one owner to another.

A proprietary estoppel may result in an equitable easement in circumstances where the servient land (ie the alleyway) is owned and the owner allows the dominant owner (the party with right over the land) to enjoy some benefit (access) over the land. As the land is not owned by anyone, this also does not apply.

That leaves the possibility of a prescriptive right. Establishing a prescriptive right requires (as I’ve said already) proving uninterrupted and continuous use of the land for the 20 years immediately before the action taken to formalise the easement. That also does not apply here, because the OP has not had access over the land.

"Establishing a prescriptive right requires (as I’ve said already) proving uninterrupted and continuous use of the land for the 20 years immediately before the action taken to formalise the easement."

I'm not so sure that's right (quite willing to be told that I'm wrong though).

There is no requirement at all for an entry to be made in respect of a prescriptive easement – the benefit automatically passes on transfer and binds any proprietors of the burdened land.
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"...20 years immediately before the action taken to formalise the easement"

How about the doctrine of "lost modern grant"? This is where rights have been exercised for any 20 year period at any time. The use of the easement at the time of the application does not need to be proved, just that there has been some 20 year period at some point.

For example, there was a case in the Upper Tier Tribunal on exactly this point in 2021, Hughes v Incumbent of the benefice of Frampton-on-Severn, Arlingham, Saul, Fretherne and Framilode [2021] UKUT 184 (LC)

The local church used to drive vehicles across a piece of land for many years (the vicar, people tending graves, funeral director etc). Mr & Mrs Hughes then bought the property and the access was stopped in 2016.

The vicar then applied to the Land Registry in 2018 to register the easement which led to this case and the easement was registered.

You have to be quite intent to show that you are determined to abandon an easement, simply not using it for a number of years is not enough.

@another2cats lost modern grant can work where you can prove continuous use for 20 years at any time (including before you owned the affected property).

In practice, proving this will require identifying and finding prior owners of the property now owned by OP to find out if any of them - or if between their periods of ownership - a 20 year period of use of the alleyway can be established. There are obvious difficulties and costs associated with that exercise given what the OP has said about the immediately prior ownership of the property. She would also have to bring the legal proceedings, with the associated costs risk involved if she loses (ie she pays the other parties’ costs).

The advice I’ve given is intended to be practical advice geared at what a normal person with normal budget for this sort of thing might actually do, as opposed to a GDL answer on an essay question as to all possible (budget unlimited) courses of action.

Thanks very much for your advice. It seems on the basis of this that there is not much we can do as they will be able to establish they’ve had exclusive use of the land for that period.
It just gives me the rage that they have acquired the land behind their two houses , and our house , all as their own, and are storing 5 bins and a load of bikes in the space behind ours and we have to keep our bins in our tiny garden which means no room for a play house or small climbing frame for the kids. 😪
We had a street party yesterday and they both had the gall to come try say hello to me. I’m so English that I couldn’t help being half polite back. I need to practice my death stare and cold shoulder lol.

@housenin this type of situation I think often the most practical solution is not going all guns blazing on “rights” (though in this case even if you did have a budget to spend on lawyers’ letters, it doesn’t sound a promising situation) but killing with kindness. “We just want to put our wheelie bins there so that our kids can use the garden. We’d appreciate it so much.”

Neighbour disputes can be very bitter and make your living situation very stressful. Honestly I’d avoid that at all costs.

I don't know were you get ' by definition ' from. If it is an old property, they often had a passageway at the rear for access, this Very common.

@Elektra1

I am not advocating that the OP rushes into a potentially costly dispute with a neighbour but neither should she give up any rights she may potentially have. I am saying that it needs further investigation by someone local to see if the OP has any rights over the alleyway. Neighbour disputes have to be declared and may affect the value of the property. I would suggest a good local chartered surveyor would be the best port if call.

The neighbour might well gain AP of the alley but it will be subject to any existing ROW OP has over it. A granting of possessory title to the neighbour won’t extinguish OP’s ROW.

@brahumbug The facts are:

OP’s lawyer advised her to ask previous owners about any access they may have had over the land. She did, and they said they hadn’t had access because of the gate. So for at least the period of their ownership plus the OP’s ownership there has been no access over the alleyway.

If the OP could establish an earlier period in which there was access over the alleyway, she may succeed in establishing a legal right. However that would require her finding the previous owners to give evidence as to this, which may be difficult and they may not have the answers she wants and/or may be unwilling to give evidence in someone else’s dispute.

A chartered surveyor is not going to be able to provide any evidence which would be relevant here.

For the reasons above, I think the most practical solution for the OP is to appeal to the neighbours’ better nature. It’s only a couple of bins she wants to put there.

Sorry, I disagree. Investigating any possible historic right to the alleyway is exactly what a chartered surveyor can do, something our business does on a regular basis. If the OP has a right then it should be asserted. If not then she can fall back appealling to the good nature of the neighbour

I’d make a gateway from your garden into the passage. They can be as “nuclear” as they like. Alternatively put another lock on the gate so they can’t use it until you come to an agreement.

@brahumbug Nothing in any of the OP’s posts suggests that she intends to spend a few thousand pounds on a surveyor or a lawyer to “investigate” or “assert her rights”. It’s unclear to me how you think a surveyor is going to evidence any historic use without speaking to the previous owners of the house, which entails the same difficulties as if the OP tried to do so herself (but with the added cost of paying the surveyor).

There is what CAN be done and what, commercially/financially, a client is able to do. Those concepts are distinct.

We had similar and just registered the piece of land in our name via the Land Registry, who were really helpful. It was a very straightforward, inexpensive process and didn't involve a solicitor. Our Deeds now show two pieces of land as our property. They still had a right of way across them but we were able to prove that the neighbours had abandoned that right (and who confirmed they no longer wanted to use the right).

Totally different situation?
Op’s neighbours have certainly not abandoned their right to anything, they’ve had verifiable sole use of the land for over twenty years.

There’s no way the land registry will register it in op’s name.

Are there any Google images of the property in previous years, which might show when the gate went up. On right-move house prices there may be older photos.

If, and it is big if, the OP has an easement then she can object to their adverse possession as an interested party. It isn't currently registered to the neighbours, apparently. So the ball is still in play. But far more information is needed before the op can decide if it is worth pursuing. She needs advice locally in order to make a decision.

Yes this is definitely practical advice. This was our initial tactic and we have had good relations with them up until this point.
But unfortunately, despite us emphasising that all we wanted to do was store a couple of bins there; we just wanted a little more space in the garden for the kids, etc - the answer was a 'no'.
It was all "we'd love to help. We hear your frustration"... What absolute bollocks. And now they think they can carry on being friendly. Honestly, all I want to do is to tell them to fuck right off.

Wish we were bold enough to knock a hole in the wall, but like you say, legal disputes with a neighbour can really make things very difficult.

:(