Homeowner in my street is threatening an injunction over my proposed use of shared access...

[woz]

Hello all,

Looking for thoughts, comments, suggestions..

 

I live at number 9 in a terraced row where the access to the back gardens is via a right of way from number one along the back of the gardens. The right of way has been in place since the row was built (roughly 200 years) and during that time it has been used by owners to carry out building work on their properties (almost every single property in the row has had an extension / renovation work over the years)

 

I recently obtained planning permission for an extension and since it has been granted one of the residents between my house and the end of street has engaged their solicitor to send me a letter stating that they are concerned about "the interference with their enjoyment of their property" and will not allow my contractor to use their section of the shared passageway to transport "heavy equipment and materials". The letter also states that if I "infringe" they will take court action to obtain an injunction to stop the works and "will result in me becoming responsible for their legal costs". (I quote the letter).

 

I'm thinking that I will need to obtain a solicitor which is a shame, I think that I have had good relations with the other residents of the street and I was fully intending to talk to them all and ask for concerns before starting any work

 

- The house owner in question has, within the last ten years, built their own extension and transported many tons of materials down the same passageway. 

- I'm not a monster  - I was fully intending to tell my contractor that they would need to be most sensitive to the neighbours and move materials by barrow / hand even if that would be more time consuming or expensive. (in the same way the other person did)

- I'm not sure even what "heavy machinery" they could be referring to. There is a chance that some underpinning may be required but my engineer has suggested that could be carried out in a less intrusive way. I certainly wasn't going to suggest to the contractor that they drive ANY machines down the path, it's not wide enough!

- I would be very happy with agreeing not to move heavy machinery down the passage but workmen with barrows and carrying materials????

- I'm totally unsure as to how they intend to make me pay for their choice to take out an injunction? If they successfully take it out and I breach it then yes, I am sure I would be liable for damages but I can't see how I could be help financially responsible if they unilaterally chose to go to court to take one out...

- I'm not a monster II - I don't WANT to get solicitors involved, I would prefer to talk and mediate but this resident has gone for the legal option...

 

Other interesting information

The resident is a retired civil engineer and up until 6 weeks ago I would have considered him one of my best friends. He has helped me move materials and build other projects on my property (barrowing many tons of materials over the years). At the beginning of my project he was offering to help with the design of the extension and we even discussed the underpinning). In the end I didn't take him up on his kind offer to design the project, I chose to go with an architect / engineer / contractor combination who knew each other and had worked together on projects in the past. He then objected strenuously but unsuccessfully to the planning application on the grounds of size and overlook into the back gardens. 

 

Thank you for reading this... Anyone had similar issues? Do I bite the bullet and spend money on a solicitor? 

 

 

[Mr Punter]

29 minutes ago, woz said:

Do I bite the bullet and spend money on a solicitor? 

 

No.  You could write to the other side's solicitor yourself saying that you intend to use your right of way as you are permitted to do.  Each time they write to you it will cost the neighbour.  An injunction will fail unless they have good grounds for granting it.

[JohnMo]

Read your deeds also see what they say

[Temp]

57 minutes ago, woz said:

I live at number 9 in a terraced row where the access to the back gardens is via a right of way from number one along the back of the gardens. The right of way has been in place since the row was built (roughly 200 years) and during that time it has been used by owners to carry out building work on their properties (almost every single property in the row has had an extension / renovation work over the years)

 

Is there anything in the deeds about the right of way? What's the exact wording?

 

If nothing in the deeds there is a bunch of info here explaining how you might have a right of way/easement.

 

https://www.landregistry-titledeeds.co.uk/frequently-asked-questions/information/private-rights-of-way.asp

 

I wonder what other neighbours think about this. 

 

[jack]

There's zero way for him to charge you for the costs of any attempt at obtaining an injunction if he undertakes it before you've done anything. 

 

If he waits until you start building and you never do any of the things he says he's worried about, the situation is the same.

 

If you start doing things he disagrees with, he is required to attempt to negotiate with you before seeking an injunction. 

 

If that fails and he seeks an injunction, you would likely be responsible for some (generally not all) of his costs if, and only if, you lose.

 

I think it's too early to be worried about an injunction. I suspect what's more likely to be a potential problem is him impeding your use of this access, such as by placing things in the way. You'd then need to get your own injunction to force him to give back the access to which you believe have a right.

It never ceases to amaze me the way people behave when it comes to anything even vaguely related to their property. It seems as though all sanity and reason goes out the window, along with any consideration of previously good personal relationships.

[SteamyTea]

Park a (expletive deleted) off big crane outside the front of his house.  See how he feels about things then.

[Carrerahill]

2 hours ago, woz said:

Hello all,

Looking for thoughts, comments, suggestions..

 

I live at number 9 in a terraced row where the access to the back gardens is via a right of way from number one along the back of the gardens. The right of way has been in place since the row was built (roughly 200 years) and during that time it has been used by owners to carry out building work on their properties (almost every single property in the row has had an extension / renovation work over the years)

 

I recently obtained planning permission for an extension and since it has been granted one of the residents between my house and the end of street has engaged their solicitor to send me a letter stating that they are concerned about "the interference with their enjoyment of their property" and will not allow my contractor to use their section of the shared passageway to transport "heavy equipment and materials". The letter also states that if I "infringe" they will take court action to obtain an injunction to stop the works and "will result in me becoming responsible for their legal costs". (I quote the letter).

 

I'm thinking that I will need to obtain a solicitor which is a shame, I think that I have had good relations with the other residents of the street and I was fully intending to talk to them all and ask for concerns before starting any work

 

- The house owner in question has, within the last ten years, built their own extension and transported many tons of materials down the same passageway. 

- I'm not a monster  - I was fully intending to tell my contractor that they would need to be most sensitive to the neighbours and move materials by barrow / hand even if that would be more time consuming or expensive. (in the same way the other person did)

- I'm not sure even what "heavy machinery" they could be referring to. There is a chance that some underpinning may be required but my engineer has suggested that could be carried out in a less intrusive way. I certainly wasn't going to suggest to the contractor that they drive ANY machines down the path, it's not wide enough!

- I would be very happy with agreeing not to move heavy machinery down the passage but workmen with barrows and carrying materials????

- I'm totally unsure as to how they intend to make me pay for their choice to take out an injunction? If they successfully take it out and I breach it then yes, I am sure I would be liable for damages but I can't see how I could be help financially responsible if they unilaterally chose to go to court to take one out...

- I'm not a monster II - I don't WANT to get solicitors involved, I would prefer to talk and mediate but this resident has gone for the legal option...

 

Other interesting information

The resident is a retired civil engineer and up until 6 weeks ago I would have considered him one of my best friends. He has helped me move materials and build other projects on my property (barrowing many tons of materials over the years). At the beginning of my project he was offering to help with the design of the extension and we even discussed the underpinning). In the end I didn't take him up on his kind offer to design the project, I chose to go with an architect / engineer / contractor combination who knew each other and had worked together on projects in the past. He then objected strenuously but unsuccessfully to the planning application on the grounds of size and overlook into the back gardens. 

 

Thank you for reading this... Anyone had similar issues? Do I bite the bullet and spend money on a solicitor? 

 

 

Have you gone to speak to him, you have clearly done something that upset him, I am not suggesting that what you did was unreasonable, but certainly in his eyes it is/was. 

 

Just speak to the guy, when you knock his door etc. just say I would like to have a conversation without prejudice and that you will respond via his solicitor but you want this without prejudice discussion with him directly.

Edited June 20, 2022 by Carrerahill

[saveasteading]

Trying to see the best in this, given that you have got on well until now.

 

Many projects cause damage to the access, by carelessness, uncaring or unthinking delivery drivers and contractors, and plain wear and tear.

Perhaps the neighbour, being in the industry has seen this and fears the worst.

 

Can I suggest that you tell the neighbour that you understand their concern, will be very careful, and return the access to the current condition if anything untoward happens?

 

Then take photographs of the current conditions...loads of them. Especially look for cracks, chips, subsidence, wear and tear for your comfort, and general views for the neighbour's.

They can do the same.

 

Plan now where you plan to offload and store materials and whether they will be in the way.

Will there be a skip, and where? Will the neighbour be short of parking space while this happens.

Also have site rules about working hours, no radios etc.

 

If all that fails, then you can't have been more reasonable, which counts in your favour if there is any formal dispute. At that stage perhaps you write to them to confirm how reasonable you have been but you are carrying on as you are entitled to.

 

[Roundtuit]

Sounds like your neighbour is set on being a pain in the butt.  How was the letter delivered? If not recorded delivery, I'd be tempted to bin it and carry on as planned.

 

However...  wiser words are as above.  If you can still manage to be civil with the guy, try and come to some sort of understanding and agreement, but you really need to understand what your legal rights of access are first.

[Jilly]

How bizzarre. Perhaps he wanted to help you so that he could control what happens and is mortally offended that you didn't take up his offer. I agree if you have previously been very good friends, t is worth attempting to sit down and talk. Can your spouses broker mediation perhaps?

[Radian]

4 hours ago, woz said:

The resident is a retired civil engineer and up until 6 weeks ago I would have considered him one of my best friends. He has helped me move materials and build other projects on my property (barrowing many tons of materials over the years). At the beginning of my project he was offering to help with the design of the extension and we even discussed the underpinning). In the end I didn't take him up on his kind offer to design the project, I chose to go with an architect / engineer / contractor combination who knew each other and had worked together on projects in the past. He then objected strenuously but unsuccessfully to the planning application on the grounds of size and overlook into the back gardens. 

This almost sounds like he feels very sore about his initial offer of help being rejected and is acting out of spite. That would be odd but It may stem from a lack of communication over the moves you took to bring in other designers. Sometimes people build an inaccurate model of what they think another person is thinking and act entirely on that misconception.

 

...Ah, I see Jilly just got in ahead of me but yes we're thinking along the same lines.

[Adsibob]

He’s in the wrong, you are in the right. But it is important you create a documentary paper trail to demonstrate his ridiculousness. 
i would write a letter setting out all the trains why you are entitled to access the land, and assure him that your builder will be careful not to damage his property but should aly damage occur you will of course put it right.

 Then point out that if nonetheless he wrongly believes he needs to get an injunction, ask him whether he will be providing an undertaking for your damages  and if so in what amount and how he will fortify this undertaking. Basically, injunctions are extremely hard to get, and if ordered they will usually only be granted on an interim basis and on the condition that the applicant gives an undertaking to pay the respondent’s costs and damages if the injunction turns out to have been wrongly granted. The fortification is effectively some form of security that makes the undertaking worth something more than just a paper promise.

 

 That should scare him off.

[Temp]

It's not clear to me that he is legally wrong, mortally yes. You would have to prove that you have a right of access over the land and unless it says in the deeds what you can do then it might be more restrictive than you think. 

 

 

[woz]

13 hours ago, Carrerahill said:

Have you gone to speak to him, you have clearly done something that upset him, I am not suggesting that what you did was unreasonable, but certainly in his eyes it is/was. 

 

Just speak to the guy, when you knock his door etc. just say I would like to have a conversation without prejudice and that you will respond via his solicitor but you want this without prejudice discussion with him directly.

Looking back, I think that the first thing that upset him was choosing an architect over his offer to design the project. The next pain point was that the architect put in for planning permission on our behalf and I didn't go and tell him explicitly or show him the plans before the architect put them in. (The planning process was all totally normal, information posted, plans shared with neighbours etc, he is not a direct neighbour but is only a few doors away). Next, when I found that he had put in a long list of objections I did go and speak to him. My position was that I was sad that he had felt that he had to raise an official objection when he could have knocked on my door anytime and highlighted his concerns. If he had done that and we had agreed I could have unilaterally pulled the application and refiled with changes. His position was that it was his "right" to complain". Even at that time we continued cordial relations with him (ironically down the disputed passage) helping to move some blocks, cement, and hardcore for some garden steps I am building. Then, when the planning was approved, he knocked on my door demanding we exchange keys (up until this point we had keys to each other's properties and would water plants, lend / borrow tools) and muttering about "unthinking about the impact on neighbours". The legal letter appeared a few weeks after that.

[woz]

15 hours ago, Mr Punter said:

 

No.  You could write to the other side's solicitor yourself saying that you intend to use your right of way as you are permitted to do.  Each time they write to you it will cost the neighbour.  An injunction will fail unless they have good grounds for granting it.

That it what I did, I made sure that his solicitor was aware of some key facts and asked some question. I don't want him to keep wasting money on solicitors. If I don't get a response within 28 days (time is not an issue for me at the moment, we aren't planning on starting until next year) then I will follow up with a suggestion that I would like to have a mediated solution and an offer to do so directly and not via his solicitor. However if he wants to communicate through that solicitor then I can't stop him spending his money)

[woz]

14 hours ago, Temp said:

 

Is there anything in the deeds about the right of way? What's the exact wording?

 

If nothing in the deeds there is a bunch of info here explaining how you might have a right of way/easement.

 

https://www.landregistry-titledeeds.co.uk/frequently-asked-questions/information/private-rights-of-way.asp

 

I wonder what other neighbours think about this. 

 

Thank you for this. I will have a good read.

 

n.b. After my engineer has completed the technical design and I know what we are going to build, how much materials, what timescale then I was going to knock on each door in the street between myself and number one, explain to each of them, ask them if they had any concerns (night shifts for example) and make sure that my contractor acted accordingly. 

 

Also note, I am wondering if I should share his actions with numbers 10-14 who also use the same passage and may at some point in the future also want to carry out some building work... However at this time that feels petty.

 

[woz]

14 hours ago, jack said:

There's zero way for him to charge you for the costs of any attempt at obtaining an injunction if he undertakes it before you've done anything. 

Thank you, that is what I thought

14 hours ago, jack said:

If he waits until you start building and you never do any of the things he says he's worried about, the situation is the same.

What is concerning is that his legal letter was vague. It doesn't say what he considered to be "heavy machinery" for example. It does say that he thinks that the passage is "normally" used "four times per day" which may be right on a quiet day but we've used it dozens of times per day for days on end when people have been having work done.

14 hours ago, jack said:

 

If you start doing things he disagrees with, he is required to attempt to negotiate with you before seeking an injunction. 

That's why I am sad that he has gone straight to his solicitor. As per other replies here he was a GOOD friend.

14 hours ago, jack said:

 

If that fails and he seeks an injunction, you would likely be responsible for some (generally not all) of his costs if, and only if, you lose.

That makes sense

14 hours ago, jack said:

 

I think it's too early to be worried about an injunction. I suspect what's more likely to be a potential problem is him impeding your use of this access, such as by placing things in the way. You'd then need to get your own injunction to force him to give back the access to which you believe have a right.

Thank you for that, I may have to talk to a solicitor after all

14 hours ago, jack said:

It never ceases to amaze me the way people behave when it comes to anything even vaguely related to their property. It seems as though all sanity and reason goes out the window, along with any consideration of previously good personal relationships.

From great friend to this in less then 4 weeks. 

[woz]

14 hours ago, Carrerahill said:

Have you gone to speak to him, you have clearly done something that upset him, I am not suggesting that what you did was unreasonable, but certainly in his eyes it is/was. 

 

Just speak to the guy, when you knock his door etc. just say I would like to have a conversation without prejudice and that you will respond via his solicitor but you want this without prejudice discussion with him directly.

I tried that after his objections to planning. I wonder if I made it worse at that point by highlighting that I was sad he had taken official action to complain, how he could have come to me directly, and how if the planning was rejected and had to be appealed that would cost me. I don't think that I ranted, accused, or threatened but who knows how he took it. I think that I may tell his solicitor that I would be extremely happy to have mediation on the issue and discuss face to face with an independent 3rd party (I'd even be happy to pay for the 3rd party)

[woz]

12 hours ago, saveasteading said:

Trying to see the best in this, given that you have got on well until now.

 

Many projects cause damage to the access, by carelessness, uncaring or unthinking delivery drivers and contractors, and plain wear and tear.

Perhaps the neighbour, being in the industry has seen this and fears the worst.

 

Can I suggest that you tell the neighbour that you understand their concern, will be very careful, and return the access to the current condition if anything untoward happens?

 

Then take photographs of the current conditions...loads of them. Especially look for cracks, chips, subsidence, wear and tear for your comfort, and general views for the neighbour's.

They can do the same.

 

Plan now where you plan to offload and store materials and whether they will be in the way.

Will there be a skip, and where? Will the neighbour be short of parking space while this happens.

Also have site rules about working hours, no radios etc.

 

If all that fails, then you can't have been more reasonable, which counts in your favour if there is any formal dispute. At that stage perhaps you write to them to confirm how reasonable you have been but you are carrying on as you are entitled to.

 

Thank you, I agree with ALL of this and when the time comes I will carefully re-read your response to make sure I don't forget anything

[woz]

11 hours ago, Jilly said:

How bizzarre. Perhaps he wanted to help you so that he could control what happens and is mortally offended that you didn't take up his offer. I agree if you have previously been very good friends, t is worth attempting to sit down and talk. Can your spouses broker mediation perhaps?

My spouse is more upset with them then I am.. but I agree with mediation.

[woz]

10 hours ago, Adsibob said:

He’s in the wrong, you are in the right. But it is important you create a documentary paper trail to demonstrate his ridiculousness. 
i would write a letter setting out all the trains why you are entitled to access the land, and assure him that your builder will be careful not to damage his property but should aly damage occur you will of course put it right.

 Then point out that if nonetheless he wrongly believes he needs to get an injunction, ask him whether he will be providing an undertaking for your damages  and if so in what amount and how he will fortify this undertaking. Basically, injunctions are extremely hard to get, and if ordered they will usually only be granted on an interim basis and on the condition that the applicant gives an undertaking to pay the respondent’s costs and damages if the injunction turns out to have been wrongly granted. The fortification is effectively some form of security that makes the undertaking worth something more than just a paper promise.

 

 That should scare him off.

This is very good advice should offers of mediation fail. The letter from his solicitor talks about the ability to enjoy his property instead of any physical damage. They are retired and thus they may be at home during the day but I would certainly be telling my contractor that they should not be making noise outside of reasonable hours in a residential area. 

[woz]

7 hours ago, Temp said:

It's not clear to me that he is legally wrong, mortally yes. You would have to prove that you have a right of access over the land and unless it says in the deeds what you can do then it might be more restrictive than you think. 

 

 

Thank you. I will certainly be checking the deeds. 

[Roundtuit]

29 minutes ago, woz said:

I tried that after his objections to planning. I wonder if I made it worse at that point by highlighting that I was sad he had taken official action to complain

Nah... I think that when he submitted the objections his battle-lines were already drawn, and he'd resolved to live with whatever fall-out followed...

[Temp]

2 hours ago, woz said:

I am wondering if I should share his actions with numbers 10-14 who also use the same passage and may at some point in the future also want to carry out some building work... However at this time that feels petty.

 

 

I would say something before the annoying neighbour winds them up.

 

Perhaps just have a chat to let them know you are going to do some building work and will try not to block the path. Not planning to drive lorries down it or anything like that. Hope to keep any noise to a minimum etc No need to mention the letter.

 

 

 

 

[Adsibob]

2 hours ago, woz said:

This is very good advice should offers of mediation fail. The letter from his solicitor talks about the ability to enjoy his property instead of any physical damage. They are retired and thus they may be at home during the day but I would certainly be telling my contractor that they should not be making noise outside of reasonable hours in a residential area. 

I think their solicitor might be conflating two completely separate things: (i) a right of way over his property to be able to wheel machinery and building materials to your property; and (ii) nuissance from your building works. 

 

Issue (i) comes to establishing that you have a right of way over his land. That will depend partly on deeds/paperwork but also on whether you can evidence that others, particularly you and the previous owners of your property, have exercised a right of way over the land in question for a sufficiently long time such that the right of way arises by prescription. I believe that period of time is 20 years, and owners can change during that period as long as there is more or less continued use of the right of way. Here is an explanation from my favourite law firm name: https://www.wrighthassall.co.uk/knowledge-base/claiming-a-right-of-way-by-prescription#:~:text=What do you need to,in use are relatively short.  If the right of way is meant to be enjoyed by the whole street, then other's evidence will be relevant. Obviously if there are access gates between gardens or even just gaps in the fences, that in and of itself is useful evidence.

 

Issue (ii) doesn't currently stand up. Nuissance in the building context can only really mean two things: noise and dust. As for noise, this is policed by the local council. Check what their rules are, usually noise is permitted from around 8am to 530pm Monday to Friday and some councils also allow noise on Saturdays for a limited number of hours. So just set out in writing what the local council's rules are and confirm that you will abide by them and no noisy work will be done outside of those hours. As long as you do that and as long as you stick to those times there is F all he can do about it and no court will grant an injunction on that basis. As for dust, as long as you take reasonable precautions (e.g. wetting very messy stuff before cutting it (like tiles) there isn't much he can do. You are not currently causing a nuissance or threatening to do so, so again no injunction would be granted.

 

Issue (i) is the more difficult one to prove. 

Edited June 21, 2022 by Adsibob