Oops! Just started an accidental neighbour dispute

[tinytoessize4]

Any legal eagles reading? Advice please...

We have a shared passageway only with next door, enclosed at either end, and locked at our end (we did not put the lock on and have evidence to prove this). We thought we owned it outright, but this is not the case as it is a restrictive covenant in the deeds. Anyway, we propsed to move our kitchen downstairs into the passageway area, knockig down our internal wall to create an open room. Yes, we know the planning permission necessary and checked this out. Out of courtesy we informed our neighbour of our pending planning permission application. We have a small son and one bedroom. We only have 2k to do the alterations. I'll continue...we informed her of this, and that she had never utilised the right of access since we had been there and never since the previous owner of our house had been there either. She got a wee bit shirty. Saying that we admitted blocking our passage by placing a lock on the door (!) to which she didn't have a key (why? because she never bothered to get one when whoever put the lock on did it.) and that this was actionable nuisance. grr. she said she wanted monetary compensation for this. We said we didn't have any money. But we do have a shared right of access across the back of her property. We offered to exchange this. She hasn't yet responded. We said it would be best if we met face to face (terrible but we haven't met her and we've been here 2yrs! We were talking by letter). She's a litigation lawyer and though I am a law student, still have a year left. She quoted James v Stevenson [1893] AC 291 at me but I couldn't find it on Westlaw. Where do we stand with regard to the fact the right of access hasn't been exercised by her for about 10yrs? is there any precedent of lapsed right of access? Sorry its long ladies & gents....

I can't believe that you think that your neighbours should allow you to build on a shared passageway as your house is smaller than theirs and your car cheaper! Just because she has not used the passageway doesn't mean that you can build a kitchen on it. The size of your house is nothing to do with her, nor is the amount of money you have.

The value of her house would decrease if your house was attatched to theirs, rather than being seperated by a passage. And it would be more difficult for her to sell.

And I imagine she worked incredibly hard to get her good job!

whether your neighbour uses the space in question or not is irrelevant. it sounds like you have made an awful lot of presumptions, like selling furniture to raise the funds to pay for alterations before planning permission is agreed.

don't wish to insult you but am really surprised that, as a law student you have been so naive.

tinytoes - am really sorry for your predicament, but it's a sad fact that even though your suggestion may have seemed perfectly reasonable to you, your neighbour was always unlikely to jump at the idea. Why don't you get the lock removed, put on a new one and have two sets of keys and come to some sort of arrangement in that if neighbour has the opportunity to use the passage but finds no need to do so in, say, the next 6 months, that you discuss the issue again.
I'm afraid it is unlikely to go in your favour, but I'm afraid you are being a little naive - and I mean that in the kindest way.

thanks for your comments, I know they were well meant. Have got my friends fiancee to act for us if necessary - he has advised us that right of access can lapse if not used after a certain length of time - think its 25yrs. As the restrictive covenant was added to the conveyance in 1980 that makes 28yrs. She has lived there from 1991 making 17yrs. It depends now on whether the previous owners of her property used it. As regards a key, it is not legally our responsibility to provide one. She should have been given one by whoever installed the lock. As she doesn't have one, and didn't know that it was locked, it was partly her error and the previous owner not to have supplied one. It wasn't jealousy that I meant by putting in lifestyle comparisons, I really truly thought that from a natural justice (fairness - naive I know) perspective then on the facts...well, nevermind. Am on it.

worth thinking about how long you plan to live there and if it is worth p*ssing off your neighbours, making life difficult or suing htem etc....

I may be wrong, but thought I read using google, that there was an amendment, and now the rights to land remain if property is registered to an owner, regardless of usage. Ammendment was in 2002, affect in 2003.

www.propertylawuk.net/adversepossessionsquatters.html

Might be totally irrelevant to this situation, though, I am not a lawyer by any means!!

how do you know she has never used the passageway? She may use it in the middle of the night to hide her lovers in. ridiculous yes, but you don't know 100% that she has never used it. she may have stored things in it or whatever

I think it would be a very bad move to try and strong-arm your way into being able to build on this land.

If you're really going to attempt to prove that right of access has lapsed, it appears that your neighbour has far more legal experience, and far more substantial funds at her disposal, and will no doubt prove to be a formidable opponent.

Spink speaks a great deal of sense, I think.

Why head towards assured stress and added expense, when the possibility of an amicable arrangement is still available to you?

it's true what lulu says too, any disputes with neighbours have to be declared if/when you wanted to sell your house, it's really not worth the extra aggro.

Move house

There is no way on earth you can prove that they haven't used the passage for 25 years! It would be impossible. She may indeed use it to sneak out her lovers.

It's not your land to build on so you can't build on it.

I'm not a lawyer but suspect it is irrelevant what case law says about right of way given your non-relationship with her and your assumptions. If she knows what you are planning to do regardless of her wishes (what, wait until 25 years is up and do it whatever? madness) she will doubtless make sure you are prevented whatever happens. I would.

You should either buy her out or come to a new boundary agreement with her that allows both of you to extend into the passageway (50% each) in future.

You are mad, mad, mad to try and do it confrontationally. You wouldn't win in a court I suspect: all she has to do is start using the passageway surely?

And as for the lock, all she has to do is break it and install a new one. Given that she doesn't have a key and she is a shared owner of the land, she can either ask you for a copy of the key, or she will be entitled to get a locksmith out.

the passageway is only 3ft wide, so it split it and build 50/50 ain't worth it. we use it everyday, we have storage in it, we pay electricity to it and maintain it. she has done...well, nothing towards it. at all while we have been here. the only reason we know she doesn't have a key is when i politely asked her if this was the case when i informed of her of the potential p.p. as for going to court. i wasn't going to do that. the right of way extends from the front of the passage up to the parking area; this is a joint access, as i said earlier, the last 60% of the right of way being across the back of her house. we can't buy her out, as we don't have the resource - but we can trade right of access - she gets sole use of the back path of her house and we get sole use of the passage. thats fair and equitable. it would be far more valuable a selling point to say that the back of her house and garden is her own, than say 'well, i have the right to go through the middle of their house'. and, as we have a door into the passage and she doesn't, it really is the middle of the house that this cuts through.but i wasn't going to go to court. i intend to settle this amicably through the trading of rights.

the lock wasn't installed by herself, the door was installed by the previous owner of no.36, our house. if she did break the lock, that would be criminal damage. as it is our door she is breaking.

phew! thanks. i thought i sounded completely selfish there for a minute.

If you are preventing her from using a passageway she partly owns by not offering her a key copy then I suspect she has every right to bring in a locksmith.

You would be in the wrong preventing her from doing so: it has little to do with what happened before (her not getting a key etc).

i thought you said neither of you had a garden? so access to a garden that isn't there would be quite strange no?

Sorry I misunderstood: is this a passageway running perpendicular to your boundary, rather than along it? i'm just not sure where these doors are...

wilf- honestly, if she tried to bring in a locksmith, or tried to break the door in any way, it really would be criminal damage. it would have nothing to do with the passage. the reason why she is objecting to the lack of access now is because she knows the right of access has lapsed.

the houses consist of mine, passageway, her front door. immediately behind the passage is three steps leadiing up the path in front of her back door and then 5 more steps to a gate and her courtyard. we have a small square of land outside our back window, to the immediate left of the passage. the right of access extends from the front of the passage, passing underneath our (at present) kitchen up the stairs and along in front of her back door and up through her courtyard.

trading the our right to traipse across her courtyard and in front of her back door with her unasserted right of access to the passage (which has our storage in it) seems more than fair and better for both of us.

simply, yeah the passage runs perpendicularly through the end section of our front room.

If the lock is on your side of the door then she would be well within her rights to insist that you had a key cut and gave it to her or replaced the lock with one for which she also had the key.

I don't understand why the door and lock belong to you if it is a shared path. I get that the previous owners of your house put the lock on and that she hasn't used the door etc. If this locked door is blocking her access then you may be in the wrong for that.

I think its hard to tell from the detail you have given exactly how reasonable or otherwise what you are proposing is, but I dont think it is anything that you would be able to impose on her, at least not without spending a fortune on legal fees.