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....

You haven't got a hope in hell of proving that she hasn't been in the passage for twenty years!

I can't even begin to imagine what I would think if my (lovely) neighbours sent me a letter saying that they intended to build on our shared passageway.

Why are you even worried if she has agreed to your proposed swap?

If I understand correctly you are intending to knock out part of the existing outside wall of your property to create an opening? How much would an RSJ plus structural engineer cost to do this work? How much does a skip cost to cart away the bit of wall you have knocked out? What are you roofing the extension in? How much do building regs cost nowadays?

Just thinking - if it is only going to cost you £2,000, maybe we could do it on our house, .

cheers quattrocento -

i. we don't know who locked off the passageway. but it was done prior to her living there, from what she has said. and that was 1991.

ii. the solicitors who did the original conveyance have documentation by the owner who sold to say that the passage was solely ours (though when we checked the deeds after purchase this was not the case)

iii. we are trying to arrange a meeting but she doesn't answer the front door (ironically) and is out most of the time. we have just been popping notes round each others letterbox.

theres no drainage in the passage at all (it gets quite damp in there cos of rain run off) so we have to use plastic storage boxes.

the starting point is 20yrs. but your right, it is hard to prove and is individual to each case. but there are precedents in our favour (just like there are precedents in her favour too) so its half a dozen of one and half a dozen of the other.

I think you are naive if you think that she is not entitled to

a) Ask for a key to the shared passageway, which you must provide
b) OR change the locks on the door

Because unless you allow one of these things you are preventing access to the passageway aren't you?

TBH I think you are being rather childish over this whole issue. You don't seem to have a very good grasp of the relevant law (as others have shown), of how much the work including legal work is likely to cost, or of normal decent neighbourly relations, or of how listed building consent works. I don't think you have a cat in hell's chance of this happening but you will probably sour your neighbourly relations for years to come if you aren't careful.

Out of interest, what would you say if she knocked on your door and said she wanted to use the passageway and could she either borrow the key or have you unlock the gate?

Helenn - the RSJ has been costed into the £1200. we live in yorkshire and know a good few builders if you want names and addresses...

Didn't mean to sound nasty BTW, just realistic, sorry if it came across that way

totally aside but - how do younow what she does for a living if you haven't met her and don't even know her name (going by thefact you said Dear no 38.)

provinicial lady - we have discussed listed planning on here, so how would you be aware of my grasp of it or not? i think considering all the comments the grasp of the legalities of it are as clear to me as they are to anyone else at the moment.

on what do you base a & b? we haven't prevented access to the passageway. we didn't know she didn't have access to it. we are not obliged to give her a ket or change the locks.

intolerant - that would be fine. though obviously i would cynically assume it was because of the current issue surrounding it. but it wouldn't alter the fact that she has agreed to a trade of right of access. after which she wouldn't get access to it as it would be a window at the front!

aha, mamazon - she wrote a reply to our original letter stating she was a litigation lawyer and stated her name. so subsequent letters we addressed to her.

provinicial lady - i know you didn't mean it harshly and am sorry if im coming across obstreperious too!

(you know what mumsnet is like...the thread goes on long after the issue...)

Thanks tinytoes - Yorkshire is obviously a bit cheaper than Devon where I live. Just can't understand why our small conservatory is going to cost us just under £10k . You forgot to say if the building regs fee within this £1200, or on top? What about qualified electrician for moving electrics, plumber etc.

I am obviously trying to be clever here - you are obviously confident that you can do this work for £2000. But, anybody who has had work done like this before would find this hard to believe. All too often this type work ends up costing more than you originally thought. You need to have a contingency fund.

I wouldn't be too sure that her discussing a trade-off means it's in the bag. Once the implications are clearer she might change her mind.
But I'm still unclear as to this business of the key. If you're not obliged to give her a key or change the lock, (or gate, presumably) how can you use the lapsed access issue? (from now on, that is. I understand that she might not have used it previously)

I'm not quite sure why your neighbour's right to change the locks is on my mind since I don't know you or her and she probably doesn't even want to, but what I meant was that if she did decide to use her right to access to the passageway then I suspect that the fact that the previous owners of your property installed the doors and locks would not prevent her from being entitled to a key. TBH it is pretty unreasonable to not let her have one anyway (if she asks) - we have a shared passageway with our neighbours and when a new lot moved in and the previous owners had not passed on a key, we gave them a copy from our set.

Re the listed building consent, I know we haven't discussed it but having worked with buildings of this age for a living, I am v aware that the planners are reluctant to allow changes that alter the character of the building, which this would seem to do.

Out of interest, who owns the property above the passageway? Is it the same woman or someone else?

its our above the passageway. re listed planning consent, yeah, we're filling out forms through our ears.

she never asked for a key and until friday, we didn't know that not only did she not know it was locked but that she didn't have a key.

grr. lapsed time, now that i accidentally mentioned in a letter to her that it was locked and unless she had a key she didn't have any obvious means of access she's jumped on that, as a good lawyer would and turned it round to say that we put the lock on and actively prevented her from using the passageway. complete cods if you ask me - last ditch attempt to keep the right of access open by saying it was an actionable nuisance. like i said, if the time lapsed we wouldn't even need to give over right of way across the back of her garden. which she knows is the case.

If she's quoting terms like 'actionable nuisance' then it doesn't sound llike this trade-off is at all sorted....
So what is she supposed to do to use this passage, if there's only one key and you have it? You say you're not obliged to give her one, but surely that's obstruction?

she has agreed to the trade off but in order for that to occur it would need to be shown that she still has a right of access to the passage and if that was to proven to have lapsed then we wouldn't be obliged to trade off. y'see?

Tiny, as you know, land is in rem, so things like the lock being installed by others won't be much of a help...

Agree with others - amicable arrangements are infinitely easier in the long run....

But as someone else has said, how on earth can anyone know when the passage was last used. The erection of the gate is a guide only. And should it be 20 (25?) years of her not using it? Or any occupant?

When did she agree to the trade-off, by the way? On Friday you said you'd suggested it but she hadn't responded.

Does she have a right of access or does she own the passage-way in common with you? If right of access it may have lapsed depending on timescales but if she is an owner then that real right in the property doesn't lapse and she remains an owner, I think.

How long have you lived in this property. Long prescription in Scotland is 20 years so up here you would need sworn statements from previous owners that this passage has not been used by the owners of other property in that 20 year period. The burden of proof would on you however to show that access had not been hindered - this may be tricky if door has been locked for X years. If she doesn't want to play ball then I think you are potentially onto a hiding to nothing. And may now find your neighbour using the passage way with a vengence.

Right just ignore me having now read the rest if the thread....sorry!

not sure how relevant it is BUT

if i was your next door neighbour i would get a locksmith immediatly and change the lock and then give you back a key to the new lock.

you may say its criminal damage but really what can you / the police do about it...

im sure the police have much better stuff to do than come round to a person allowing them selves acces to their own land, that they have a right to use, and so long as the locksmith cleaned up after him self and gave you the key im really not sure there is much you can do about it. (also id imagine by the time the police arrived a new lock would all ready be installed)

im sure the police wouldnt be too bothered either... there must be enough other crime for them to deal with...

of course she shouldnt pay for the electricity in that passageway if she doesnt use it.

after i had had a new loCK installed i would definitely make a point of just walking through it a couple of times a day just to make my point too.

weather you agree to swap access rights or not i think YOU are being very unreasonable... not her

I feel sorry for your neighbour

The one thing confusing me is why it's worth all the hassle. You say it's a one-bed house at the moment, and you are extending the downstairs.

Will that create another bedroom?!, and if yes somehow,.. how long is a small two-bed going to satisfy your family's needs? How long do you therefore plan to live there.

And, therefore, why on earth start all these legal proceedings and turf wars with your neighbour, who, by the sounds of things is a woman living on her own who just wants a quiet life, and to enjoy her evenings after long hours working in the law courts...??

Perspective seems skewed to me.

Your one big strategic advantage, though you are unaware of it, is that she is a litigator so unlike most people she knows that litigation will wreck her home life and yours for a few years.