Whose right of way? Not your gate to brick up, court tells residents’ association.

For one property owner and their tenant, it must have been quite a shock to discover that the gateway giving access from the end of their walled garden into a private lane had been bricked up

Yet this is exactly what happened in the recent case of The Mayor and Burgesses of the London Borough of Brent and another v Malvern Mews Tenants Association Ltd [2020].

The 'bricking up' was done by the residents' association which claimed it owned the private lane in question, although this could not be proved.

The legal battle which ensued, and during which the residents' association admitted trespass, resulted in a judge ordering the gateway to be unblocked and awarding damages of £1,900.

No right of way

However, although the judge ruled that the gateway should not have been blocked up in the first place, he did not agree that the property owner and their tenant had a right of way over the private lane. This decision was later upheld by the High Court at appeal.

Unhappy with this, the property owner and the tenant criticised the judge for making a decision beyond his discretion.

They did not pursue the right of way at trial, only the claim for trespass, preferring to establish the right of way in future proceedings after they had obtained further evidence. The danger was that the residents' association defended this element vigorously.

The High Court found the judge had acted within his discretion in deciding there was no right of way based on the evidence in front of him.

If the property owner and the tenant had formally withdrawn the claim to the right of way before trial, this negative finding would not have been possible. However, they may have been hit with a significant costs order if it discontinued a major element of its claim just before trial.

Specialist legal advice

Wards Solicitors provide specialist guidance and expertise when it comes to disputes about rights of way and easements - taking early advice can be crucial in helping you achieve the result you want.

Our Disputes Team is singled out for praise in the independent Legal 500 Guide for 2020 with our lawyers recommended for their accessibility, empathy, efficiency, expertise and experience.

For more information, please contact Solicitor Associate James Murray: James.Murray@Wards.uk.com