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....

cheers lingle. am not unaware of her position as a litigator and how she knows that its a costly route to take for all.

we're planning on staying in the house until they prise our cold dead corpses from our bedroom. we're not having any more children. period.

the creation of a large open plan kitchen/living would mean we don't have to traipse upstairs to get our cuppas and people (like my MIL) won't break their arms/wrists/legs trying to move fridges upstairs.

gomez- its only a right of access in favour of no.38 the actual passageway belongs to our boundary.

ps as for the police involvement in criminal damage - well, we'd wouldn't call 999 but we would inform them of it meaning they would have a criminal record and would have to foot the bill for the new door. however tidy the locksmith is.

i cant imagine they really would get a criminal record...

my step father violentky attacked me a few weeks ago... strangled me and gave me 6 bruises... i have been to the plice etc and they have arrested and spoken to him, he has his finger prints and DNA on the police data base but he did not get a criminal record as it was his 1st offence and nothing that seriouse, like GBH or murder etc

so actually im sure she would NOT get a criminal record for changing the lock, as i cant imagine changing the lock tohave access to property that id already yours anyway would be seriouse crime

Also cant see why if they canged the lock you would need a new door

surely an identical lock with a different key would not require a new door...

when the door lock mechanism broke at my old house we had a new lock fitted with a new key but the door stayed the same and as perfect as it was before

[shock nannyL

As far as I can tell (and no, I'm not a lawyer) the whole issue of whether you have the law on your side or not is completely academic as it would be uneconomical to take her to court over it. Your best (and only) chance is to try and resolve this amicably.

How would she have a criminal record just because you tell the police that she changed the locks? Surely she'd only get a record if they prosecuted and I suspect hell is more likely to freeze over than the CPS wanting to waste public funds on that.

I think that you are being totally unreasonable about the whol edoor and lock thing. Irrespective of who put the lock on the door originally, if it is now your door and your lock then YOU are preventing access. How do you expect her to be able to use her right of access??

Here's hoping she asks you to borrow your key.

From what you've said you have recognised that she has a right of access and are trying to wheedle your way out of this.

From this site:

"An owner of a servient tenement may try to claim that an easement has been extinguished because the dominant tenement has abandoned the easement. Usually, lack of use does not amount to abandonment and the right to use the easement will remain even if it has not been used for a very long time.

To claim abandonment, the servient tenement must show that the owner of the dominant tenement has done something that positively signifies his abandonment of the easement. For example, if a dominant owner bricks up a gateway, or blocks off the gateway by building a house extension across it, so as to prevent its own access onto a footpath or drive over which he enjoys a right of way, then the servient owner might assume that the right of way has been abandoned. The servient owner might then be able to act as if the right of way had been extinguished, for example, by planting across the right of way or by building an extension across it."

YOU HAVE NO RIGHTS TO SOLE USE OF THE PASSAGE WAY - END OF.

Not with 100 locks, 50 gates, etc. Only if SHE had blocked the 'easement' could you have a hope of claiming that she abandoned it.

She hasn't asserted her rights (as yet) to access since you lived there, but you haven't been in possession of the shared access more than 10 years, so can't even claim "squatters rights".

In addition, the fact that she has taken no measures to provide electricity is of no consequence. Presumably she didn't feel that the passage way needed electricity, and the fact that you took it upon yourself to provide it is your look out.

It would be crazy to suggest that if I chose to replace a fence on a boundary when it was actually my neighbour's boundary, the boundary would become mine, wouldn't it?

That is the flawed logic you are applying to your case.

I for one feel very sorry for any future clients you consult once you are qualified, if you can be this slap-dash with your application of the Law to your own affairs.

Well, the door might not belong to the shared access, and it might belong to you, and it might be criminal damage if she were to break it....but did an occupier of a house ever have a right to put up a door that was owned by one person (not both) on a shared access pathway, not allowing the other person a key?

It is beyond stupid to say "well, she should have asked for one before now"....surely she should have been given a key!!!?!?!!

Oh and I can just imagine that! Call the police because your neighbour changed the locks on a passageway that you both own, in retaliation to you putting your own door and lock on because you think it is yours and she shouldn't be allowed to use it!

And, AND!!! both of you lovelies are lawyers....well, I can imagine what the police will say.

tinytoes, you still haven't answered my question and the pertinent one in all of this: does she have any other access to the shared passageway other than through the locked door? Is the locked door through your house? Or is it somewhere else - ie from the street into the passageway? Let's say, hypothetically, if she wanted to access the passage (regardless of whether she does, or whether she has, or whether you want her to) how would she physically do it?

I actually think you're mad by the way and a teeny bit malicious.

Hang on, have I misunderstood something here.... are you saying now that the land is yours, but that she just has right of access across it? Or that you jointly own the land, but that currently she can't access it because she doesn't have a key?

Surely you do have to provide her with a key if she asks or you are preventing her having her lawful access to the passage way.

I think the whole question of who owns the land or has access to it is irrelevant actually because I'll eat my hat if you can do any kind of extension (particularly on a Grade II listed property) for 2,000 pounds.

If its listed then you won't be able to do the extension anyway, the only way you can extend a listed building is with a conservatory and that is it, no knocking down walls or anything.

intolerant - the LAND is ours. she has access across it just as we have access across hers. it is a granted right of way only in favour of her property.

it is not a servient tenement. nor is hers a dominant one.

what?!! where did you get the idea you could only extend on a listed building with a conservatory? you can alter any building you like as long as you can provide a justification that it is in character with the rest of the property.

just because it does not go to court to be prosecuted does not mean you do not have a criminal record. (ps am really sorry about what happened to you, hope that they do prosecute cos 1st offence or not the police would not let someone get away with an offence against the person with only a slap on the wrists.)

wilf - to answer your question, yes the right of way does go through the property: the main room downstairs!!! if you knew the circumstance rather than the bit on here and you knew the house and the house documentation i don't think you would say its malicious. but alas, alack, face to face meetings are infinitely better with dealing with important matters than the written word - and that is what we have been trying to get her to do. but as shes at work (understandable) and at the weekends away (goes away friday and comes back sunday midnight-ish) and doesn't answer her door...what ar ewe meant to do?

am hoping that eventually someone who knows something about Land Law and Conveyancing will appear on here and at least let me know where I stand....

does anyone actually know about planning permission, criminal damage and restrictive covenants and abandonment of easements here?

But honestly, if you want to extend and you have a listed building than it doesn't just mean you can only add a conservatory. You wouldn't add a whacking great conservatory on buckingham palace would? it isn't in keeping with the house...and thats what the council want to know. amongst other things.

Tinytoes I really think that you should take legal advice on this matter

you need to see a real life lawyer, suggest you start with a land law lecturer at uni and then take it from there!
if you don;t want to seek legal advice as you cannot afford it, then see the CAB who might be able to advise you of a solicitor who works pro bono. or speak to your lawyer friend.

this is far too much for an internet forum, where people can pretend to be lawyers or barristers or whatever !

www.rushcliffe.gov.uk/doc.asp?cat=9570 Does that add anything? Sorry, can't do proper links...

I am taking legal advice...have several solicitor friends who are on it as we speak. am also doing research myself through my law course website.

thought i might get some advice from here but no offence (although i bet it will be taken), the comments have been interesting and some have been helpful (citing the James v Stevenson) but tbh - where do some people get there ideas from? will probably be barred from mn for life now - and im not saying that because i didn't get any 'gosh you are doing the right thing' comments im saying that because well, some ideas are just plain wrong...

if it was suggested that a door you owned was bashed in - as was insinuated here a few times - i bet most people would be peeved off. not just that but it would be a CRIMINAL act, whether you intended it to be or not - and whether the result (ie access to a right of way on foot) was correct or not.

not just that, but listed building permission only for a conservatory? the mind boggles that anyone could think thats the only circumstance for it to be granted.

and thinking that the only way you get a criminal record is because it is prosecuted in court...eh?

if its any help it is that time of the month, so i may be more confrontational than usual.

as for the surprise of doing a building project on a budget of £2000 - we're going to be doing some ourselves and we're not re-fitting the house from John Lewis or buying an MFI standard kitchen. you don't need architects and design consultants to plan refurbs to your own house - its wasted money and the result would be exactly the same (unless of course you have the imagination of a brick wall and little drawing skills - which is fine, if thats ok for you)

am going to take long hot soak in bath after spending most of last night up with teething tot...and take several deep breaths awaiting stern responses or not and a letter from next door (cos i doubt she'll change a habit of two years and counting and knock on the door for a friendly chitchat.)

sorry for rant, just needed to vent.

ps sorry for x-posting with other helpful posts

but to get a criminal record there has to be a succesful prosecution!!

sounds like you have lots of people helping oyu in RL

i still maintain that being amicable and friendly will get you further and maintain good neighbourly relations esepcially if you have no intention of ever moving.

OK, let's put it done to PMT - because, if I'm honest, you have come across as a bit confrontational. Most people have been trying to help - even if they have wondered if you've any chance of the outcome you want here.
Mind you, now I've read it the relevant posts again properly and realised it is actually your land, then a "right of access swap" does seem a bit less 'out there.'Or rather, a possibility.

i am being amicable with her lulumama, but shes talking wanting compensation for loss of right of way (for one she doesn't use and indeed if the facts are right, has no call to anyway.) shes also saying that we are to foot the bill for all legal costs incurred on her part?! and she pulled rank first saying she was a lit. lawyer. sigh perhaps i haven't put myself across right on here so far. maybe i should get my hubby to starting philosophising (he did a Philosophy degree before career change to physio) and asking q's like 'what is ownership?' but i won't.