I have a vehicular right of way over my neighbour’s land which is formally registered in both mine and my neighbour’s title deeds.   However, my neighbour recently erected a gate across the right of way and locks it after 5pm every night, which means I can’t access my driveway or home.   When I asked him to provide me with a key for the padlock he refused.   What can I do?”

This problem is classed as an interference with, or obstruction of, your right of way.   If your neighbour is refusing to talk to you, such an issue can be resolved by making a claim to the court that your rights have been interfered with.

The first thing to do is to establish if the locking of a gate over your right of way amounts to a wrongful interference.   Courts generally apply a test of “substantial interference” to such cases, which is designed to see if there is a problem and how seriously the right of way has been impacted by the obstruction.

This issue is a question of fact in each case.   In some scenarios, the Courts have been prepared to find that the erection of a gate can amount to a substantial interference.   For example, if no gate was there beforehand, or if it is locked and no key has been provided to you.

Photographs before and after the obstruction was erected can be helpful for claims.   It can also be useful to have video evidence of just how difficult it is for you to use the right of way – if at all – with the obstruction in place.

This evidence should then be put to your neighbour before the issuing of proceedings so that he has an opportunity to respond and, if necessary, provide you with a key.

If your neighbour continues to refuse to provide a key, the next step is to get advice about whether Court proceedings are necessary.   In extreme circumstances, you might have to get an injunction requiring your neighbour to remove the gates – or at the very least provide you with a key.

From a practical point of view, given that the Courts have over the years come to different decisions as to what constitutes substantial interference, depending on the individual circumstances of each case, such issues are less likely to be a problem where the terms of the right of way have been clearly defined at the outset.   Therefore, if you are contemplating granting a right of way over your property to an adjoining land owner or negotiating with an adjoining land owner to grant a right of way for the benefit of your property over your neighbour’s land, correct legal advice should be taken to ensure the wording of the right of way accurately reflects your requirements.

The Law surrounding rights of way can be complicated but Thursfields have an experienced property team who will be able to assist in advising on such issues and in all aspects of your sale  purchase or other property transaction.

To discuss how rights of way may affect the use of your property or to find out more about our fixed fee conveyancing quotes please contact property teams on:

Kidderminster – 01562 820575
Worcester – 01905 730450
Halesowen 0 0121 227 3850
Sedgley – 01902 904060
Stourport – 01299 827517
Solihull – 0121 624 4000

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