Oops! Just started an accidental neighbour dispute

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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....

resolving things amicably does not mean assuming she will just lie down and roll over; it means respecting her actual wishes, not presenting her with a load of legal precedent that she probably will have a much better grasp of than you.

i understand that and there is also a convenant in the deeds

look, i was a law student once upon a time... and it is easy to get caught up in the letter of the law and was is just.. BUT, you have human nature and good relationships with people that also need consideration

and you are not thinking about that at all

you are thinking, this is good for me, and it must therefore be good for her

absolutely wilf.. spot on

"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"

Except she's only been there 17 years and can therefore demand a key now and access the shared passageway thus destroying your "lapsed rights" argument. I rather suspect that you do legally have to provide her with a key given she has access rights to the passage.

One thing which puzzles me is the fact that you seem to think that because your neighbour has more money than you (you think) this somehow entitles you to extend into her premises. How illogical is that? My next door neighbour has more money than me? Shall I extend into his garden?

aaarghhhh! never mind driving everyone else nuts! all i wanted was a short bit of advice from another lawyer!

to clarify: she has agreed in letter to us that she is willing to trade right of access. as long as we foot all legal costs.

yep, provinicial lady, the house is grade 2 listed and we know all about the listed planning consent aspect. so lets not start a discussion there, but thanks for mentioning it .

wilf - as regards anthropology and psychology; i was a nurse before i was a law student. i took some courses at a-level in sociology and psych.

i won't even go into the amount of title deeds we have relating to the house, for some reason the previous owner has all of them (not just her own) dating back to 18-flipping-84.

so , she is willing to trade , so what is the problem?

Even if she did agree to your proposal the cost of legal fees to amend the land registry details etc would probably far exceed your budget for your extension. It really doesn't sound worth it. You will probably discover that there is shared drainage running under that access passageway anyway which would stop you from extending onto it.

I would advise just knocking on her door and trying to come to some arrangement whereby you both have access as you should and forget all about this.

there is at least one lawyer on this thread, if i am not mistaken

why not ask your land law tutor for some advice?

soupdragon - exactly. she knows it is near to lapsing and therefore she would have no bargaining chip at all and would just have to legally roll over and take it. but we really aren't legally obliged to give her a key as it was installed prior to us moving in and therefore she should already have had one cut.

lulumama- it a really quiet not talking to each other sort of area. she hasn't even met us while we have been here, but then we have made no move to meet her either. though we have said 'hi' as we put out bins.

I have an LLB (Hons) but I don't think the legal position is really relevant tbh - is it actually worth the hassle and can you afford to do it - with £2k, I seriously doubt it.

Well i am clearly a stroppy bitn cos if you came at me with teh argument "youhaev to let us do it as you dont even use the access" i would go straight to B&Q, buy a new lock and change it.
then i'd make damn sure i went in and out of it 3 times a day, LOUDLY!

me too washersauraus! it comes in so handy for my current work ! lol

you could make the exception tinytoes, and talk!! just because no-one else does....

anyway, you said she will agree to the trade off.. so what is th problem? or is it you cannot afford to foot her legal ccosts and do the wrok?>

if there is at least one lawyer on the thread could they please raise their hand, cos im confused by the amount of people offering their opinion. lol.

lulumama-as she has agreed to the swap in principle there isn't a problem but its the lure of the thread...it just keeps spiralling on its way now with comments!

Seriously though, have you checked where the drains are? We have shared drains that run across the back of our house and under the shared passageway that would cost a lot/be impossible to move if anyone ever wanted to build over them (our neighbours recently spent a lot more than they budgeted extending their kitchen by 3ft)

ppl keeping posting while im typing! grr... we do talk. we talk to the neighbours above her and the ones below but she doesn't talk to any of them. she doesn't answer the door cos we tried knocking on it so we can only write letters.

mamazon - i haven't come at her with the you must agree to this. i came at her with:

dear no.38,

we are looking to do some work on our house, moving the kitchen downstairs, and we wanted to inform you of our plans and to discuss them with you.

she came back with a two page letter and case citation!!!

I don't understand your argument that your neighbour exercising her right of access can be criminal damage. It seems to me that this argument presumes the right of access has lapsed, which I don't believe has been established.

washersaurus- the drains are on our (seriously, it is our) small bit of land behind our back window. but if anything needed doing it them, she could, we wouldn't stop her.

the criminal damage would be the fact that the doors put on the passage are ours. nothing to do with the passagway. by damaging them, she would be damaging others property. your right, it hasn't passed the 20yr mark yet...but i could probably keep it going that long!

But if she has a right to access, then it isn't criminal damage...

if there weren't any doors on the passage, no it wouldn't. but the doors are on the passage and were put there by previous owners of our house. so they do not belong to the shared access.

I would say that "informing her of your plans" as opposed to asking her if she might have any objection to an idea you've been thinking about, might have been a more tactful way to go about it.
I don't see how the fact that you didn't install the lock means you don't have to give her a key. She must have access to a key and if you can't give her one, then you must agree between you to get a new lock installed that you both have keys to. But that might not suit your hope that the right of access will lapse for her.
Sorry, but from what I have read here YABU (wrong dept, but ykwim)

but this is not my field at all, am tax. Just asked DH who does do some planning work, and he was even vaguer than I am about adverse possession and whether the covenant affects this.

I have three observations:

(i) Have you checked the position around locking off the passageway? I think that sounds dubious.

(ii) Are you sure that you can prove that it is yours by adverse possession in any event? Because it seems to me unlikely. You've only been there for two years.

(iii) I echo the suggestions of going to talk although it seems to me that you are already in an adversarial place.

I meant the drains that take the water off the property, where does your drainage run to?

Ours and our nextdoor neighbours drains run along the back of our property and through the passageway (these main drains are shared by 4 houses) and lead out under the road at the front.

Just spoken to dh who is a property lawyer. He said that 20 years is the normal term to establish prescriptive rights. However, to prove abandonment of an easement is incredibly difficult and he knows of cases where an easement has been unused for over 40 years and it still hasn't been considered abandoned by the courts.

He feels the only way to be absolutely certain is to do a transfer of the rights, which would require your neighbour's agreement.