What can I do about my right of way.

[Trevor62]

I live in the upper flat of a maisonette, I have a right of way that goes around the back of the building from the side entrance, there are only two flats in the building.

Anyway for years there has been a gate with a lock to go through the right of way, now for the past year the flat has been rented out, the flat owner has not left any contact details, Im not sure who the managing agent is either.

When the renters moved in they put a bolt on the door so I had to knock on their door to ask them to unlock it so I can enter, this is where my gas meter is and every month I like to take a reading.

Anyway last time I went around they said the lock was broken and let me in through the front door, to go around the back, I was not to happy with this and while I was around the back I started to mention that maybe I could fix the lock but before I could say much I was told by the lady that she did not have time to talk as she was getting ready for work.

Right, sometime ago before all this came about I mentioned to her that I and the owner had decided that no Ivy should be allowed to climb up the building, I mentioned this to her and she said that she would keep it off the building.

Ok, one evening while passing the front unfenced garden to my side stairway I pulled a small bit of Ivy off the lower wall just a hand full.

The other day while I was putting my children in the car she was coming out of her flat and when she saw me she started swearing and calling me names and telling me to keep off her property and noting that I had pulled the Ivy off the wall even though at the other end of the wall there was alot of Ivy starting to climb the wall.

Finally, a couple of days ago I knocked on her door to ask about reading my meter and was told I cold not come in and I would have to wait for her husband to come home before I can come in.


Right thats the back ground story out the way.

I have done a bit of research regarding Right of ways and from what I gather you can put up a gate with a lock but you have to give a key to those who have the right to use it


So what shall I do?

Is there a process that is available to me to force these tenants to fix the lock and take off the bolt and allow me the freedom to use the right of way?

Many Thanks

[Macromia]

You can write to the leaseholder (presumably the tenants landlord) and ask them to ensure that the tenants respect your right of access.
Other than that, there is nothing that you can really do without going to court.

For future tenancies you may be able to appeal to the leaseholder, and perhaps freeholder, to insist that any future tenancy includes a clause that clearly states that you have a right of access (although even a clause of this type in the rental contract doesn't necessarily mean that it will be easy to gain access if the tenants refuse).

[Lawcruncher]

Have a look at this thread which I posted a few years ago: https://www.gardenlaw.co.uk/phpBB2/v...837&hilit=lock

If you have a right of way it needs to be freely exercisable. A bolt on a gate means that the right is not freely exercisable.

The people you need to address here are the tenants as it is not the landlord who is impeding free access. Tell them that since they have been uncooperative you no longer consent to the gate being bolted. If they say it is for security tell them that that is their problem, not yours.

What about self help? The law allows it, but discourages it as it may lead to a breach of the peace, personal injury or damage to property.

[Trevor62]

This is the variation that was made about two years ago, there was already a ROW here but we altered the path of it so it would not be in the way of a kitchen extention they were proposing to build.

We are both leaseholders and freeholders, and the other party I can not contact as I dont know where they are, Im not sure who the managing agent is either. I cannot just do nothing.
Could I go to the county court and get some kind of order with out using a solicitor? Bring along the deed of variation which also shows the ROW drawn on the title deeds?

Any opinions?

Variation details below


BACKGROUND
A. This deed is supplemental and collateral to the Lease.
B.The Landlord and the Tenant have agreed to vary the Lease on the terms set out in this deed.
C.The Landlord is entitled to the immediate reversion to the Lease.
D. The residue of the term granted by the Lease is vested in the Tenant

Agreed Terms
1. lnterpretation
The following definitions and rules of interpretation apply in this deed.
1.1 Definitions:
Lease: a lease of the Property dated 21 March 1958 and made between. Property: ******************************* as more particularly described in and demised by the Lease

1.2 References to the Landlord include a reference to the person entitled for the time being to the immediate reversion to the Lease. References to the Tenant include a reference to its respective successors in title and assigns,

1.3 A reference to the Lease includes any deed, licence, consent, approval or other instrument supplemental to it.

1.4 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.5 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.

1.6 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.7 The expression tenant covenant has the meaning given to it by the Landlord and Tenant (Covenants) Act 1995.

1.8 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.9 Unless the context otherwise requires, a reference to the Property is to the whole and any part of it.

1.10 Except where a contrary intention appears, references to clauses and Schedules are to the clauses and Schedules of this deed and references to paragraphs are to paragraphs of the relevant Schedule.

1.11 Clause, Schedule and paragraph headings shall not affect the interpretation of this deed.

1.12 Except to the extent that they are inconsistent with the definitions and interpretations in clause S of this deed, the definitions and interpretations in the Lease shall apply to this deed,

2. Variations to the Lease:

2.1 Variations made:

From and including the date of this deed, the Lease shall be read and construed as follows: the Tenant relinquishes all rights of way over the land coloured orange on plan 1 annexed to this Deed and receives in its place the same rights over the land coloured red on plan 2 annexed to this Ðeed.

2.2 Lease remains in force:

The Lease shall remain fully etfective as varied by this deed and the terms of the Lease shall have effect as though the provisions contained in this deed had been contained in the Lease with effect from the date of this Deed.

3. Tenant's covenant

The Tenant covenants to observe and perform the tenant's covenants in the Lease as varied by this deed.

4. Governing law This deed and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

5. Jurisdiction Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this deed or its subject matter or formation (including non-contractual disputes or claims).

6.Third party rights A person who is not a party to this deed shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this deed. This does not affect any right or remedy of a third party which exists or is available apart from that Act.


Thank Law cruncher for that bit of advise but I think talking to them is a lost cause.

Thanks macromedia

[Lawcruncher]

The deed is not exactly a model of concision. It is a classic example of a draftsman taking a precedent and not bothering to delete provisions which are not needed. The key clause is 2.1 which has clearly not been taken from any precedent for varying a right of way. The standard is to release the existing right and expressly grant a new one. However, the intention is clear and the deed effective to achieve the desired change.

There is no disputing you have a right of way. Court action is a possibility but the outcome of litigation is never certain and in your case the expense if you lose and the tenant is represented is going to be disproportionate to any benefit you would have obtained. It has to be a last resort and only if you are being caused severe inconvenience.

[Trevor62]

This is the ROW as it is in the land registry.


Can I ask another question?

As you can read it says Boundary determined by edge of pavings. Before the other party moved out they built a fence along the boundary though they build it on my side of the boundary and there side is in red which is the ROW where they cannot build on I presumed.
I told them I did not give permission for them to build here but they went ahead.

If I did take the matter of the ROW to court could I also include this issue and have the fence removed?

The top part of the drawing is my side garden, the green line is their garden fence.


Many Thanks

[Trevor62]

When I posted the above post I also included a drawing as an attachment, looks like it has been deleted, not sure why, anyway thank for the replies.

Many Thanks