Legal query re right of way (over land)

[MaggieW]

There is a strip of land at the bottom of our garden which was part of an alleyway running around to the road which presumably used to be used by binmen etc. Prior to us moving here (we've lived here 13 1/2 yrs) this land was incorporated into our garden by both our predecessors and the neighbours at the time. Fences were erected and although gates were left in, the gates have never been used as far as we can ascertain. As our property was empty for 5 years before we moved in, another neighbour estimates the land was incorporated around 20-25 years ago at least. In fact, the previous neighbours have planted trees and shrubs across the gate between our properties, and the neighbour prior to that had her well-established rose garden in the same spot, which demonstrates it's not been actively used or required.

Our neighbour, who has the other incorporated garden, recently moved in, and now wants to re-establish access over our garden to the alleyway, which now starts off at the end of our garden and runs around to the road. Both our deeds have the right of access in them, and this is the nub of the problem.

Our solicitor advises that, as the right has not been exercised by anyone for a period of time, that the right of access has therefore been forfeited. Our neighbour's solicitor advises the opposite, that a right exists indefinitely whether it's used or not.

We don't want to fall out with our neighbour, but equally we don't want to have her, and any subsequent owners, having access to our garden. We also don't want to have huge legal bills - I've just paid £300 to our solicitor to get this far - but I really just want to find out how to establish the fact and which solicitor is right?

Can anyone help please?

I don't have a legal background but I think your solicitor is right. It works the other way too - if you have been traipsing through someone elses garden for 20 years then I think a public right of way has been established.

Did you get the neighbour's solicitors answer in a letter directly or just heresay from the neighbour?

No,this has all been done verbally so far ie her communicating what her solicitor has said. Today she's presented me with some legal precedent which her solicitor is basing his advice on so I need to pass that on to our one, which is when it all starts getting complicated.

I have to say I don't feel much goodwill towards her at the mo as recently we took out some of our climbers on the fence between us which had died off and had become very woody and she went mad because she said by removing them we've taken away her privacy. Now she wants us to replace the fence (it's ours) with a higher one, which we're not going to do as the existing one is perfectly good, and is complaining about the bamboo plants that we've planted as a screen. We've also replaced the trellis and planted new climbers but obviously they'll take a season or so to establish. I have to say I researched the bamboo carefully as I don't want them spreading in our garden, but that was for our benefit, not for hers! Anyway, I feel we've been reasonable but that it's not being reciprocated which is why I'm really wanting to establish the situation definitively re access.

We bought our house 2 yrs ago and are moving again soon and have exactly the same thing as you as in the end of the garden was part of the alley way but it has been claimed as our garden for donkey years so our neighbour on our right has no access from her garden to the alleyway but we still have a gate into the alley. So this has come up when we bought and sold and it is all our so your solicitor is right - though the guy on the end of the terrace wont let anyone put their bins in the alley - there are many houses with gates onto the alley - as he says its his alley so we have to take our bins through the house to the front for the bin men as we have no front and are not allowed to put bins on the pavement.

From everything I have read on such things - I have a slightly bent choice of reading matter - I think your solicitor is right. Hold in there.

Basically, you and the previous owners have "adversely possessed" the strip of land in question by fencing it off and using it for your own purposes. You need to do so for either 12 or 14 years (can't remember from my degree) and then you can claim ownership of the land. So I think your solicitor is right. On the registration deeds for your property, is the disputed area shows as being part of your property? I think you should ensure it is registered as such if it is not already, but doubt that would change the basic legal position.

Yes, our solicitor is currently going through the process of adversely claiming the land and having it put on our title and she too says this doesn't affect the access issue, although it formalises the situation. However, our neighbour says this is a separate issue to access and has already been in touch with the Land Registry to register an objection to us adversely claiming the land(she doesn't hang around!). I can see she may be right that a right to access is a separate issue from ownership, but from what I am lead to believe, the fact that the right to access hasn't been exercised for so long then it is forfeited, which is exactly the opposite of what she is claiming.

Yes, Mammajools, this sounds exactly the same situation so that is reassuring. The rest of the alley is owned by the neighbour on the other side ie it's on their title, but we, and the other neighbours on the other side of the alley, have right of way over it.

Hi, just seen this and definatley think your solicitor is right. Some time ago in my long distant past, we knew of someone disputing a public right of way. I believe the outcome was that if the right of way wasnt used for a period of time the right was forfeited. I think it my have been 20 years though. Ask at the CAB - it may be cheaper.
Hope that helps!

Again your solicitor is right and your neighbour sounds like a right stroppy cow - why does she want to go through your garden??