Rights of neighbour

[IsleofWightPete]

Our house backs onto a golf course. In common with many of the houses along our road, we have a gate in our (very dilapidated) fence, which is probably the original oak fence from c 1908 when the house was built, implying more than a century of access.

Last year we received a letter from the golf club saying that people along our road should not put gates in their fence, and if they have one, it should be removed, because residents have no right of access over golf course land.

My initial reaction was to say ..... off, it is my fence (clearly stated in deeds and supported by physical evidence) and I can therefore choose to remove or replace the fence, or let it fall down, in any manner I see fit, including putting a dozen gates in it if I so choose. However, I never wrote back to the golf club to express my thoughts.

However, more recently I have been pondering whether there are actually any acquired rights of access over the golf course land. During my 20+ years in residence, my kids have periodically used rear access across the golf course as a short cut. Probably only a few times a year, and not necessarily every year, but fairly steadily during that period. And the evidence of the gate would suggest previous occupiers have probably done the same.

Is it likely we will have acquired rights of access? Is it possible that their letter if left unchallenged might extinguish those rights?

It would seem to me that if the golf club really wants to prevent access, they should be erecting & maintaining their own fence at their own expense, rather than trying to dictate to neighbours what they should do with theirs. And if they did that, it would save me the expense of replacing my rear fence!
(There is nothing in the deeds granting any rights of access, and I am not particularly bothered about retaining/exercising any existing rights, although I can envisage how they might actually become valuable, eg if the golf course land were ever up for development.)

Any thoughts welcome.

[Lootman]

I wonder if the insurers of the golf course have stipulated that the golf course should take steps to deter incursions onto the course, because of the potential liability, e.g. getting hit on the head by a golf ball or getting run over by a golf cart. If so, the letters sent out may just be something that the golf course can show to the insurer to indicate that they have taken steps.

Maybe they will send one out annually, again just for appearances, and you can continue to ignore them.

Personally I would not reply to any such letter, or acknowledge it in any way. And I'd make a point of continuing to access their property on the same basis as in the past, to ensure that your pattern of regular and sustained usage continues. Ultimately trespass is just a civil matter and, at least outside of the hours the golf course is open, there clearly isn't any harm or damage done.

Funnily enough, I also have an old gate that leads into somebody else's land. I haven't used it but always assumed that it indicates some ancient agreement between the two property owners, informally at least, that there is a basic right of mutual entry, say in an emergency.

[Clitheroekid]

Is it likely we will have acquired rights of access?

The fact that there was a gate in the fence when the house was originally built is very strong evidence that the house did enjoy a right of access on to the golf course at that time.It's rather surprising, therefore, that there's no mention of this in the house deeds.

In the absence of a written right of way you may have acquired a `prescriptive' right of way. This is where an occupier of land has exercised a right of way over neighbouring land as of right for at least 20 years, and if established it's enforceable to the same extent as a written grant of a ROW.

However, there are various criteria for a right to arise. The use has to be more than just a couple of times over that 20 year period. It also has to confer some actual benefit on the property claiming the ROW, so it would be necessary to establish that the short cut referred to was to a specific destination - you can't have a ROW leading nowhere.

Is it possible that their letter if left unchallenged might extinguish those rights?

Yes, in the same way as putting up a notice can prevent such rights arising or extinguish existing ones if the notice is obeyed. One of the key points about obtaining a prescriptive easement is that it must be exercised in the old phrase "nec vi, nec clam, nec precario", which basically means "without force, without secrecy, without permission". As it's not practical for a landowner to police the land the erection of a sign prohibiting access is generally enough to prevent a prescriptive right arising, as any entry in defiance of the sign would by deemed to be `by force'.

To enter the land in direct contravention of a letter from the landowner warning you not to do so would probably be construed in the same way.

Of course such a notice is of no effect if the prescriptive ROW already exists, but it can become effective if, following the erection of the notice, the person that used the ROW stops doing so for at least a year.

If someone claiming an easement acquiesces in its interruption for at least a year the easement may be lost, so it would be sensible to assert the right in writing to the GC before the first anniversary of their letter passes.

[Lootman]

However, there are various criteria for a right to arise. The use has to be more than just a couple of times over that 20 year period. It also has to confer some actual benefit on the property claiming the ROW, so it would be necessary to establish that the short cut referred to was to a specific destination - you can't have a ROW leading nowhere.

That's interesting. I would have thought that the access and usage itself was a benefit. Suppose for instance I have a tiny back yard, but with a gate that leads out onto a golf course. I establish a pattern of taking my morning constitutional walk in that open space, stopping to feed the birds by the lake, taking in the fresh air, and communing with nature.

Is that not a "benefit" in itself? The recreation and exercise have value to me.

Of course such a notice is of no effect if the prescriptive ROW already exists, but it can become effective if, following the erection of the notice, the person that used the ROW stops doing so for at least a year.

If someone claiming an easement acquiesces in its interruption for at least a year the easement may be lost, so it would be sensible to assert the right in writing to the GC before the first anniversary of their letter passes.

I also suggested that it was important to continue using the claimed easement. And it's obviously useful if the owners of the golf course are aware of that - the access must not be furtive. But is it really necessary to reply to the letter as well?

As a general rule I don't respond to letters making spurious claims. But you appear to be arguing that there is value here to making sure you can demonstrate that they knew you have been accessing the land and will continue to, and a copy of your reply documents that. I'd just be wary of it setting up a whole back and forth.

[Slarti]

Which came first, houses or golf course?

If houses, what do deeds of golf course say?

Slarti

[melonfool]

However, there are various criteria for a right to arise. The use has to be more than just a couple of times over that 20 year period. It also has to confer some actual benefit on the property claiming the ROW, so it would be necessary to establish that the short cut referred to was to a specific destination - you can't have a ROW leading nowhere.

That's interesting. I would have thought that the access and usage itself was a benefit. Suppose for instance I have a tiny back yard, but with a gate that leads out onto a golf course. I establish a pattern of taking my morning constitutional walk in that open space, stopping to feed the birds by the lake, taking in the fresh air, and communing with nature.

Is that not a "benefit" in itself? The recreation and exercise have value to me.

A right of way is not a right to use someone else's land as you see fit (ambling about, quacking at ducks etc) it is a 'way' - to get you somewhere else!

For example, many of the terraced houses I am looking at buying have rights of way along the rear gardens to allow access to bins or sheds or something. That does not mean the people who can use the ROW can laze around in my garden sunbathing and watching my goldfish.

Mel

[didds]

so there wouldn't be a RoW of passage to the lake .. where duck feeding occurs as an "extra!... and then back again? eg the lake cannot be classed as the "somewhere else" ?

merely checking.

cheers

didds

[melonfool]

so there wouldn't be a RoW of passage to the lake .. where duck feeding occurs as an "extra!... and then back again? eg the lake cannot be classed as the "somewhere else" ?

merely checking.

cheers

didds

Unlikely if it is private property.

Mel

[didds]

cheers Mel.

didds

[Lootman]

A right of way is not a right to use someone else's land as you see fit (ambling about, quacking at ducks etc) it is a 'way' - to get you somewhere else!

For example, many of the terraced houses I am looking at buying have rights of way along the rear gardens to allow access to bins or sheds or something. That does not mean the people who can use the ROW can laze around in my garden sunbathing and watching my goldfish.

Fair point, but in the end all I'm really doing is walking. It's not like I'm planting vegetables there, building a gazebo, or trying to get a free round of golf.

A lot of rights of way in the countryside pertain to footpaths through private land. They are primarily used for recreational hiking, where the purpose is not so much to get to a destination but simply to enjoy the walk. I could walk for an hour, turn around, and return home, without ever getting to where the path leads.

Getting back to Pete's example, since his only use of that land is his kids taking a short cut, then presumably his de facto easement is only that short cut. But if instead his regular pattern of use had been a round-trip to the lake, then that would presumably be his easement, rather than a right of passage to some destination beyond the golf course. If he had ten different walks within the golf course, then doesn't an implicit easement for all ten of those walks exist?

That said, Pete didn't ask about a right of way. Only about whether the golf course can compel him to remove his fence, and it seems fairly clear that they cannot.

[swill453]

That said, Pete didn't ask about a right of way. Only about whether the golf course can compel him to remove his fence, and it seems fairly clear that they cannot.

No, they didn't try to compel him to do that, and his post doesn't ask about it.

They tried to compel him to remove a gate, but he (rightly IMO) has dismissed this as a possibility. His question to the board was about right of access.

Scott.

[Clitheroekid]

A lot of rights of way in the countryside pertain to footpaths through private land. They are primarily used for recreational hiking, where the purpose is not so much to get to a destination but simply to enjoy the walk. I could walk for an hour, turn around, and return home, without ever getting to where the path leads.

Such paths are public footpaths, which are a totally different legal animal from prescriptive rights of way.

A public footpath is designated as such by the local authority and grants a statutory right of way to the general public, so it can be used for walking as of right by anyone.

A prescriptive right of way is granted solely to the owner of the land that it benefits.

[Lootman]

A prescriptive right of way is granted solely to the owner of the land that it benefits.

That still leaves the question open about whether such a prescriptive ROW allows more than just the ability to pass through that owner's land. I gave an example earlier of where the historic pattern of usage was recreational and entirely within that land.

Also, Mel stated that it cannot involve actual usage of that land. She gave the example of how an easement into her back garden does not come with sunbathing rights on her lawn. Fair enough, but what if Pete sunbathed on the golf course every day for 20 years, in plain view of the owners and managers of the course, who did not object? Would the prescriptive ROW then not just be a right to enter the land but also the right to use it in that way?

The more common example that I have seen, in the West Country, is rights to move animals through private land, such as moving cattle from one field to another, or watering or grazing rights. It seems that an easement can be more than just a basic right of way but also involve certain kinds of usage.

[Dod1010]

In England I assume there is no 'Right to Roam' legislation? I live in Scotland, and on our local golf course there is a notice to say 'No access to Pedestrians or Cyclists' which most, including me, ignore. When challenged, the owners of the course agree that they cannot stop me but the notice is to try to discourage me for my own safety, and protect golfers against claims from the likes of me if I am hit by a flying golf ball.

As to the original OP's question, obviously they cannot force an adjoining property owner to do anything with his own fence. Is it not possible to have a word with the golf club Secretary on the QT and ask him what it is all about? Probably nothing more complicated than trying to protect themselves against claims for injury caused by flying golf balls.

Dod

[didds]

when the farm next door to us was sold the land agents "had a word with me" about a gate in our fence - said fence being one of the boundaries that was "ours" to control. I asked what the issue was, the bad cop agent wittered on about access to to private land. I replied about the access freely given by the previous tenant farmers to us? Much shuffling of feet and murmuring. Then just "well, remove the gate". Me pointing out its my boundary to do with asa i wished. But if the purchaser was real;ly that concerned he could of course put his own fence up on his own land to prevent access.

Bad cop got snarly. Good cop accepted what I said was true, both left.

New purchaser came around to say hello, heard the story and called them all the names under the sun.

diddsw

[melonfool]

In England I assume there is no 'Right to Roam' legislation?

Dod

No.

Mel

[richlist]

We had the land owners of the land behind our back gardens write to all the adjoining property owners asking them to remove the gates in their bounderies giving them access to the land.

Most of us just ignored the letter and threw it in the bin but one owner removed his boundary fence/gate and rebuilt the fence entirely of gates.....we thought that was rather amusing

[Lootman]

if the purchaser was really that concerned he could of course put his own fence up on his own land to prevent access.

If the existence of that gate and/or the prior pattern of your access to your neighbour's land constitutes a prescriptive right of way, as discussed earlier, then in fact the neighbour would not legally be able to put up a fence to block your access, nor create any other obstacle to prevent you exercising that right.

Of course, if they did build that fence, you might instead just take your own fence down. That happened to me once and I gained a couple of extra feet of garden. And if I had to, I could always climb over his fence anyway . . .