Blog - 07/12/2018
Update on knowing your rights over neighbouring land – rights of way
Further to our blog titled ‘Knowing your rights over neighbouring land’, we have reviewed further case law on this topical issue and have provided updates which further demonstrate the importance of knowing your rights in this area.
In the case of Thavenot v Patterson County Court (Bristol), 25 May 2017, the claimant and defendant owned adjoining properties (numbers 24 and 23 respectively) in a row of six terraced cottages. Number 23 was at the end of the terrace.
The claimant alleged that a right of way existed down the side and around the back of number 23, enabling her to reach both the back door of her own cottage and her garden. The claimant bought her property in August 2014, while the defendant bought hers in December 2015. Shortly after doing so, the defendant erected tall gates to prevent exercise of the alleged right of way. The gates remained locked until early April 2016, when the court ordered their unlocking.
The claimant asserted that during that period she was unable to use the right of way. The claimant argued that she had a prescriptive right of way down the side and around the back of the defendant’s cottage. Among the witnesses was a woman, born in 1957, whose relatives had owned number 24 between 1930 and 2008. She had made a statutory declaration which included the following statement: “The access way has been used by me and my family visitors and friends since 1957 as of right without the consent of any person and without interruption and without payment of any kind to any person whatsoever until the present time. I verily believe that in addition to this the access way was used by previous members of my family throughout the period from 1930 to the present day”.
In deciding the case, the Judge found in favour of the Claimant. The evidence provided by the witness mentioned above, justified the conclusions that at least from 1957 access was regularly obtained to number 24 via the access way and that use of the access way was open and lawful. Her evidence also showed that occupants of the terrace regarded use of the access way as a matter of right rather than of mere permission and that the owners of number 23 from time to time were well aware of the exercise of the right of way. The consequence was that by 1977 20 years’ use had been established as of right. That was sufficient, for the purposes of the doctrine of lost modern grant, to establish a prescriptive right of way.
The court granted a declaration setting out the parameters of the right claimed and a permanent injunction.
This case further demonstrates the importance of understanding exactly what rights affect your land and questioning actions by others in relation to interference with these rights. Here, the actions of the defendant and her partner, even if based on a wrong view of the law, displayed attitudes which were not to be encouraged and which, if no injunction was granted, might have led to misunderstanding and difficulty, including selling the property in the future.
If you require any advice concerning rights of way, or any other land and property related rights please contact Shams Rahman – Partner, or a member of our Property Litigation team.
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Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.
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