Right Of Way

[chrissa1]

My lovely rented house is one of about 15 semi detached houses on a hill which back on to a school's playing fields. The year before I moved in, the Council erected a 6' high fence around the field and about 6" from every houses garden fences.
My neighbour, (down the hill from me), fought the Council stating that he had used the land beyond his fence for removing garden waste etc. He had done this for about 30 years.

Last week he won his fight and the Council moved the fence back to 12' from our fences.

However.....they only moved the fence back up to His garden, (3 houses in total), the rest of the street still has this school fence hard up against their gardens.

I have no axe to grind as it's not my house but surely a Right of Way, if proven, should include the whole fenceline.

Any thoughts please?

[Zacs-Master]

Individual case. Individual results. I'm not sure that ' right if way' is the correct legal term in these circumstances.

[ABerrant]

The granted easement is a private right of way, not a public right of way.

[chrissa1]

So are you saying that every house has to pursue it's own case?

If the house at the top of the street had won the "easement" then the whole street would have had the fence moved back. The only opening to the road is at the bottom.

[Zacs-Master]

Yup.

[Eve]

Could be right of way if he was not claiming ownership but just a right to go across it for taking waste out etc...

Land is valuable and the council aren't going to give up land they don't have to so if only he claimed it sucessfully they have probably restricted it to only the land he claimed affected him.

As Zacsmaster says, it's individual cases and it depends on what rights exist in what terms and how they were accrued.

Was there a written right of way existing which was enforced or was it claimed successfully that a right of way had been accrued by action (prescriptive)? These kind of things can make a big difference as to what can be claimed and the action needed to claim it (and potential time and cost factors!).

If prescriptive rights have been accrued by him then he would have needed to satisfy all requirements such as using it for a sufficient period of time and continuously. Anyone else looking to have such rights established would also have to prove their continuous use etc...

[chrissa1]

Yes Jenna. He proved that he had used it for this purpose for the 30 years he has lived there.

[buildersmate]

The legal process between creating a public right of way and a private right of way is similar but the latter involves more people (there is no specific number).
It can arise after unchallenged use by the public for at least 20 years, which may then give rise to a presumption of dedication under Section 31 of the Highways Act 1980.
Or it may arise under common law after any appropriate period of time (again not specified) by way of a presumed deed that has been lost (known as a "modern lost grant").

This isn't what happened here, and only that individual is legally entitled to the private right of way - thus it technically excludes the other two houses whose fence-line has also been changed.

[chrissa1]

So "technically", the other 2 houses could be prosecuted if they walk on the land? Crazy.

[buildersmate]

It would be a civil trespass - no more than what the neighbour who had been doing it for more than 30 years did. After a long period of time unchallenged, he acquired a right.