In the recently reported case of Bradley v Heslin, the High Court considered an owner’s entitlement to close gates over a private right of way. As bizarre as it may sound, the court said it was possible to acquire the right, by long user, to hang a gate over a driveway (by occupying the airspace), although on the facts the case failed because the party had not established 20 years of continuous use. Like all legal cases, it’s difficult to apply a principle universally, but this case may provide comfort to those people who have issues with access or a right to pass and repass, and rely on a gate which they may have erected (despite not having a legal right to do so).
More generally, as a firm, we see quite a few cases where parties argue about the legal merits of having acquired a right to do something or not have something done on their land, and the most important take away is to remember to keep evidence of exactly what has/has not been agreed, what has actually taken place – the extent of the use is often critical – and to record a contemporaneous note. Also, the cost/benefit is a critical component before deciding on your ‘legal’ options. In short, some rights are much more valuable than others, and if you can come to a binding agreement with your neighbour which can be enshrined in a legally binding document (legal advice is crucial at this stage and possibly before the agreement is inked in) then it will save the angst and bad feeling that often follows when neighbours go to court.
If you would like to discuss the case further or any issues associated with the rights that you think you may have acquired over another’s piece of land, please feel free to contact me.