Whether it’s a legal, tax, insurance, management or land issue, Farmers Weekly’s experts can help. Here, Richie Rees of Thrings advises on a tricky neighbour right of way question.
Q. My neighbour has a right of way over my land to access the highway. He is obliged to contribute to the maintenance of this access. He has decided to let a part of his property on short-term lets (between one and three days) using Airbnb.
This is not ideal for us and is detrimental to the privacy of our tenant, who is right next to the part of the property that is being let out. Can we stop him having his Airbnb guests use the right of way?
A. I am afraid the simple answer is ‘it depends’. Your ability to challenge the actions of your neighbour will hinge on the extent of the right of way.
You will first need to establish the extent to which the neighbour can use the right of way in law, and then consider whether the actual use by his guests goes beyond it.
You say that your neighbour is obliged to contribute to the maintenance of the access, which suggests there is a written agreement. If defined in writing, your neighbour would benefit from an express right of way.
Even if there is no written agreement, rights of way can be implied or obtained by a long-term user over time through prescription or under the doctrine of lost modern grant based on continued use for 20 years, so those possibilities would also need investigating.
Express rights of way are most commonly recorded in deeds at the time of creation. It may, for example, be a narrow right, limited to access only by your neighbour on foot; or it could be a wider right permitting use of the right of way to the land for all purposes and at all times.
While express rights may on the face of it provide certainty, a dispute can still arise on the interpretation of the words used, or the physical extent of the right of way.
Definition of right of way
For example, often the width of the right of way may not be defined; or it may not be clear if the right is limited to the landowner or a particular use.
Where wording is open to interpretation, evidence of the circumstances surrounding its creation may assist or undermine an interpretation.
If the holiday lets are a recent development that post-dates the creation of your neighbour’s right of way, it may be possible to argue that it was never intended to permit access for guests, or to multiple holiday lets, depending on when the holiday lets were built.
This could be considered an intensification of use.
Assuming an express right exists, you really need advice on whether your neighbour’s actions are permissible. Does use by the guests fall outside the scope of the right? If so, how often is this happening and do you have evidence of it?
Potential grounds for claims
Proving that the guests are acting beyond the scope of the right may enable you to bring a claim for an injunction, stopping future use. You may also be able to claim damages.
However, be aware that if you try to stop the guests using the right of way, your neighbour may similarly seek to bring a claim against you for ‘substantial interference’.
They could seek an injunction against you, and also claim for damages arising from your actions.
These permutations show that your first action should be to consider obtaining legal advice on the nature and scope of the right of way.
That would enable you to consider the merits of taking steps to stop your neighbour’s guests, and the risks posed by your neighbour’s potential response.
Knowing the strength of your case is key before you can sensibly embark upon productive settlement discussions with your neighbour and your tenant.
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