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Agricultural Q & A- 21/12/2009
Question:
The vehicular track to part of my farm is across a neighbour’s property which has recently changed hands. The new owner tells me I have no written right to use the track and is intending to block it based on what is shown on his Deeds. I have been using the track for 30 years and my father before me used it for at least a further 20 years. What can I do?
Answer:
The fact that your right of way may not be in writing will not defeat you. If you can gather the relevant evidence including supporting witness statements and plans and you can prove either:
a) more than 20 years usage (which will acquire for you what is known as a prescriptive right of way) or better still
b) by adding together your father’s usage and your usage more than 40 years evidence (which will create what is known as a easement by way of lost grant which presumes that at one time a formal right of way was granted).
If your neighbour refuses to accept legal advice that you have a right of way then you may end up having to take Court action with a threat that the neighbour will have to pay all the Court fees and legal costs. Court action by this nature is expensive and may involve injunction proceedings to prevent the neighbour blocking up the access.
Your evidence would need to detail how the track had been used, for what purposes, plus additional details such as whether you had maintained the track and improved it. Perhaps at one time the track had been fenced off from the remaining land. Basically the fact that it is not written right of way in the Deeds will not stop you proving that you have such a right of way if you have the evidence.
It is always better to try and negotiate a way out of these legal difficulties but sometimes it is not possible to do so. If you are looking at Court action it is worth you checking your household insurance policy which in some cases may cover legal costs in connection with such matters.