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Original poster

Oops! Just started an accidental neighbour dispute

494 replies

tinytoessize4 · 29/08/2008 23:03

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....

OP posts:
SoupDragon · 31/08/2008 09:38

She has been denied access, not simply failed to use it. Given that you did not own the house when the lock was put on you have no way of knowing what actually happened wrt her getting a key. The reason she doesn't use it for storage nor do anything to maintain it is because the door is locked and you have the only key!!

Once this is done you won't have even £2k to build the extension on the shared passage.

FiveGoMadInDorset · 31/08/2008 09:39

You still need to check deeds for restrictive covenants, you haven't even mentioned these.

SoupDragon · 31/08/2008 09:41

Five, the shared passage/access is a restrictive covenant.

ElfOnTheTopShelf · 31/08/2008 10:01

God, I hate shared areas with a passion.

Out of interest, who has responsibility of maintaining a shared access?

tinytoessize4 while you believe the proprosed trade is a fair trade, (and it sounds fair to me) the point is your neighbour doesn't think it is fair. Regardless of whether she uses it, has access etc.

And, to echo other peoples posts, be careful regarding neighbour disputes - my mum and dad's next door neighbour was always raning for one reason or another despite my mum and dad trying to fit in with their requests (she worked nights sometimes) and she made a complaint to the council about my parents wind chimes. So, when she tried to put her house on the market she was screwed, having to declare that she'd made complaints about noisy neighbours! She's still living next to my mum and dad, being unable to sell her home (when the market was good)

lou031205 · 31/08/2008 10:15

Tinytoessize4 - you are seeing this completely from your point of view. The trade off is fair in your eyes. Just because you perceive your access across her back door an inconvenience, doesn't mean that she does.

When you bought the property, you bought the door and lock, but that didn't override her rights to access to her shared passageway.

You are seeing everything in terms of what you can afford to do, as some kind of justification. As a Law student, you must surely realise that the Law doesn't give a flying fart how much you can afford to spend, and the fact that you can't afford to buy her out is irrelevant.

FWIW I think that you are very wrong about her rights to obtain access to the passage. Just because you have the door, lock, key and stored goods does not make you in any better position. She can gain access forcefully if she requests access to the passageway and you decline. It is her property.

WilfSell · 31/08/2008 10:28

I still don't understand the geography. Is the only access she has to the passageway through your locked door?

If this is so, law student or not, I think you're completely wrong about the criminal damage issue. She is doubtless right about your preventing her (if this only access point for her) as an 'actionable nuisance'.

If you are proposing continuing to prevent her access to the property she owns, then I'm afraid you deserve her legal wrath.

Far better as others have said to open the access, clear your stuff, show her you're acknowledging her legal right to the space, buy her a massive bunch of flowers and apologise saying you hadn't realised her position etc etc... And then and only then discuss the trade.

ilovemydog · 31/08/2008 10:39

But a restrictive covenant and prescriptive rights are totally separate, iirc...

If she has an easement over the land, it doesn't matter if it isn't exercised? I always thought that prescriptive rights were only in issue when land was unused.

misdee · 31/08/2008 10:48

all this over 3ft extra width of space?

Original poster
tinytoessize4 · 31/08/2008 11:51

lol misdee. according to law, right of access, given in deed can lapse if not asserted within 20yrs. this can be shown by annexation of the land by another, in the form of storage or whatever. also, amendments to the access that have not been objected by the owner of the shared area either through error or through agreement cast favour upon the interested party. there are precedent for this - i found them on lexisnexis butterworth, the legal resource online. the common act 2002 s.61 also confirms the standards needed to prove abandonment of easements. i think the trouble is, if it can be proved that she has not asserted her right over this access since she has been there then she has little chance of keeping the shared passage. obviously, that would mean we do not owe her any compensation and can still have access over the back of her yard as it can be proved that we use it. this is why she wishes to have a key now. after all these years. cynic that i am. i am not seeing it all from my point of view though. immediately next door to the passageway is her front door. why would she need access it her house if she has a front door right next to it? we have a door into the passage because this is the only access to our house. and it really would be criminal damage if she tried to forceably alter the door to the rear or to the front as this is our property (as we own the door). plus, we solely pay for the electricity in the passage - why would we pay for electricity in a passage if she had shared access to it without any contribution to the maintenance of it?

OP posts:
Original poster
tinytoessize4 · 31/08/2008 11:53

ps if it turns out we do not owe her any compensation for the sake of magnamity we would offer to give up the right of access across her back doorway as we planned to do if we did owe her compensation. prior to finding out the necessary clauses for abandonment she had agreed in principle to the compromise.

OP posts:
WilfSell · 31/08/2008 11:57

You're not listening to any of us are you tinytoes?

You're obsessed with the legal position and not at all thinking about what would be reasonable as neighbours.

You are surprised she is being combative when confronted with your absolute sense of being in the right. You are clearly not a good judge of character or social niceties, or you are just incredibly naive and TBH I really hope you don't ever end up conveyancing for me.

lulumama · 31/08/2008 11:58

regardless of the law and whether her right has lapsed.. which unless you can surely prove she has never used nor will ever need access to that area again... are you really prepared to do all this ? and make relations with your neighbour strained and nasty?

i still cannot believe you are going to get this work done for £2000!

WilfSell · 31/08/2008 11:58

And, as reported here, your argument sounds utterly illogical. She does not use nor pay for maintenance or electricity. Yes, because you are preventing her from accessing the passageway!

lulumama · 31/08/2008 12:01

ironic you are using the word magnanimity in regards to this.. you are so convinced that you are in the right..

Original poster
tinytoessize4 · 31/08/2008 12:04

well, as she is prepared to swap right of access it shouldn't become nasty. the exterior work we want done she wants similar work done on hers - so we are both aware that if PP is granted then it sets a precedent allowing her to go ahead with her proposed works. we have enough in favour of proof of abandonment. if she should want to pursue the matter of further then she can go ahead and start an action against us - at her own expense. we would represent ourselves with advice from our solicitor friends pro bono. so legal fee wise it wouldn't hit us too hard.

as for getting the work done for £2000 - its costing £150 PP, £250 surveyor and £1200 to do the work. my hubby has been on a lime plastering course (as its a 15th century house and has a different sort of plaster to allow the walls to breathe) and we are re-using the kitchen units we already have so cost of the actual building work ain't that much.

OP posts:
Original poster
tinytoessize4 · 31/08/2008 12:07

wilf - she didn't know it was locked until we told her on friday. so she obivously had never used it. as for paying maintenance if had done so or made any attempt to do so - which would probably have been done when we moved in (she was already there) then she would have more claim. the fact that she hasn't and that we solely supply the electricity also goes in our favour.

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Mamazon · 31/08/2008 12:09

yuo sound like a typical law student to me.

Rather than knocking on her door and trying to be a nieghbour you have tried to impress her by sending a letter and making it all formal.

get your head out of your arse and realise that its your own fault you have a crappy car and she doesn't. the fact you have a tiny flat is your problem not hers.
has it occured to you that she got her nice big house and nice flashy car because she is good at what she does and certainly wont be bothered by some jumped up little nobody trying to get heavy with her.

lulumama · 31/08/2008 12:10

you are not thinking this through

you are prepared to go to court over this

and i presume you want to live there for a long while yet

would you not rather be on speaking terms with your neighbours?

well, good luck!

Mamazon · 31/08/2008 12:11

you solely supply the elcrticity because the ( i am guessing 1 light bulb) is wired to your electricity supply.

If you have been there a year im guessing the bill for this 1 bulb must be an extortionate 50p!

Original poster
tinytoessize4 · 31/08/2008 12:11

hang about, i never said we would go to court. only if she instigated it would we do so.

OP posts:
Original poster
tinytoessize4 · 31/08/2008 12:12

its two light bulbs and three electrical points if we're going get pedantic over it

OP posts:
lulumama · 31/08/2008 12:14

but you have alrady thought about what you would do if she took you to court... so you are not thinking in terms of resolving things amicably.. at the end of the day, there is shared access, not up to you to decide she does not want to use it...

Original poster
tinytoessize4 · 31/08/2008 12:16

it may be shared access lulumama but there are legal rules governing it. and one of them relates to abandonment of easements. we are prepared to resolve it amicably as i have stated several times re: trading sole right of access - she gets the sole use to her back garden and we get sole use of the passage. it really is fair.

OP posts:
TheProvincialLady · 31/08/2008 12:18

If your house is C15th is it listed or in a conservation area?

WilfSell · 31/08/2008 12:18

I don't think it matters whether you only just told her it was locked. It's HER property in part.

I suggest you study a bit of anthropology and psychology before you graduate, it will help you understand people more and make you a much better lawyer.

You are driving us all nuts; no wonder she is fighting when bitten!

so has she already agreed to swap access? it is unclear from your posts if she has or if you're just assuming she will...