need some advice on how to deal with a neighbour/access across land issue

[queenrollo]

our neighbours side wall is directly on our boundary. At the bottom is a gate which gives him access to his back yard. He does have a full access across the back of the row of terraces.(He does not actually live in the property, but visits it several times weekly)

The actual terms of rights of access and indeed whether he has a legal right to use this gate at all have never been clarified. We want to build a wall across the front of our property (it is our only outside space, i want to secure it so i can let ds play out there), but need to make sure we aren't blocking a legal access. Also i'm not happy about the garden being insecure from the rear via this gate.

Our neighbour has recently started playing up about petty issues and also never tells/asks me when he is going to drag ladders/christmas trees etc through this gate, and i would appreciate this courtesy at least.

On Friday we asked him to provide the legal documentation he claims to have showing he has this right of way/access. Our solicitor never found any such paper work during sale of the house.
As i want to get this wall built as soon as possible (and we have to, it's part of a planning/conservation order) how should i approach the situation? I thought it was best to give him till this Friday to produce the legal papers he claims to have and if they don't materialise then write to him demanding them. I've never dealt with anything like this before so has anyone got any advice to help me resolve this as peacefully as possible.

Do you mean his ONLY access is over your land or that he has alternative access? - I was a bit confused by your post, sorry.

We lived in a property once where we had to cross our neighbours land to park our car & they tried to prevent us doing so. We had to prove that their land had been used to access our parking area for x number of years, which we did & they weren't allowed to block it. Not sure if that's relevant or helpful to your situation!

sorry...is a bit confusing isn't it.

i'll clarify with some extra info.
it is an extra access, according to the previous owner of our property the gate was installed and an access agreed for the coalman to make delivery without having to walk all round the back of the terrace. (gentleman's agreement was how he put it)this is when the property was occupied by the owners eldery MIL.

there are other issues which have forced us to finally clarify things legally. if he does have a legal access we have no problem at all in maintaining it. i am trying to deal with this situation without bringing emotion into it (for example he damaged my tomato and pea plants when he dragged the ladders through, and he told my dp that he knocked and told me he was doing it when he didn't. this has upset me but i'mtrying to put this out of the equation)

If there is a legal right of access, then it should be included in the deeds to both your property and his.

It sounds to me as though it was granted as a courtesy some time ago and he is now trying to claim it as of right. If your solicitor cannot find any proof of it and your neighbour doesn't produce any, then I'd go ahead and build your wall and that then leaves the ball in his court to commence court action to have the right of access reinstated. If he does this and then produces evidence which he could have produced prior to commencing such action, then he may well end up having to pay both parties' costs.

At our last house we had a similar situation. There was a very elderly gent who lived over the back of us (we shared the end fence to our gardens). There was a general store at the top of our road and the previous owners of our property had installed a gate in the fence so that Bertie (elderly gent) could go through their back garden, through side gate and up the road to the shop as the alternative was quite a long, circuitous route.

We didn't know anything about this until one day Bertie just walked past our kitchen window and through the side gate. Much as we didn't want to upset him, we had to insist that he stop using the gate as it was disconcerting to have him suddenly appear in our back garden and then, later, we had the children and there was the issue of whether he would remember to close the gate.

I would get your solicitor to write to your neighbour asking for legal proof of his claimed right and that, failing production of such proof within 14 days, you will be building a wall to enclose your garden.

Thankyou very much Freckle, i'll give him to the end of the week to produce the documents he claims to have and then speak to my solicitor.

When I worked for a solicitors we had a case similar to this. If the gate has been in for some years (you'll need to check legally what the limit is) then he may indeed have legal rights to use this access even though it's not on either of your deeds. I have a feeling the limit is something like 15 years. But don't quote me as gospel on that?!?!

I'd pop to a local solicitors and ask for a half-hour advice on this to see what their thoughts are.

Good luck.

if it isn't on the deeds but he can claim use of it through the 'so many years rule' could we then have legal documents drawn up specifying use.....for example a metre wide strip from the gate to the boundary of the property? (i say that because this is what we have done with the landowner on our other boundary for a fire exit). at least then we could keep that clear but still make the garden secure for ds to play in.

at the moment he just traipses across my garden wherever he feels like it.

Well, seeing as it's your garden, I see no reason why you can't block that bit off for his use and make your garden secure for your children. As long as the entrance to his gate is not blocked then he can't complain. He would have access through your garden, not all over it. Of course you might be able to argue that his continual use of your garden is affecting your right to enjoy your home. (that's a legal right of yours too.)

I would check with solicitors primarily on the first issue though. We did have two cases that were contested and both were lost by the people who had argued that the offending rights of way etc were not on the deeds.

I think what funkimummy is referring to is a prescriptive easement.

This happens when someone carries out an act (that is capable of being an easement) repeatedly, openly and without the landowner's permission for a period of least twenty years.

Has your neighbour owned his land for 20 years? Can you check with your vendors whether they gave him permission initially to use the access? If they did, then he cannot acquire a prescriptive right to use it because he needed their permission in the first place.