Shared driveways – share and share alike…

If you are buying a new property and have off-road parking, then due to space restrictions in many new developments it is very likely to be shared with a neighbour/neighbours. However, if you are buying an older property there is often shared access and sometimes it is unclear what your rights and the rights of others are.

There are typically three different types of rights – an express right which will have been created by previous owners which attaches rights to the land and is binding for subsequent owners.  That should be the position with a new property.

Older properties may also benefit from express rights but there may also be different rights which may have developed over time, such as prescriptive rights which result from a right of way being continuously exercised over someone else’s land for at least 20 years.  This right must have been exercised without the landowner’s permission or consent.

Finally, a property may benefit from permissions or consents which have been informally agreed between property owners but can usually be withdrawn.

You should ensure that you know exactly what your legal position is over shared access before you commit to buy a property. If it is not in your Report before Contract you should ask your conveyancing solicitor to clarify what the position is. 

Unfortunately, some neighbours find it difficult to share and it is easy for communication to break down and for a dispute to begin.  There is an expectation in law that people should use a shared driveway considerately.

Some problems can be resolved more easily than others – your neighbour may have got their interpretation of the rights wrong so calmly explaining the situation and showing them the relevant paperwork may help.

The most typical issue over shared driveways is where one neighbour interferes with the other’s right of way to access their property. This could be due to poor parking, visitors or trades people blocking the way or other inconsiderate use.

If you do find yourself in dispute, you should take prompt steps. If you have legal expenses insurance, you should report the dispute straightaway to your legal expenses insurers and follow their procedures.  The costs of these disputes can escalate alarmingly and legal expenses insurers will not pay claims for the costs of solicitors before the they have signed the solicitors up. If you do not have legal expenses insurance you are well advised to employ solicitors on a private basis.  You should seek the advice of a solicitor who is a specialist in these types of disputes.

You will need to establish that you have rights over the land, that your rights have been substantially interfered with and because of that interference, your rights cannot be ‘substantially and practically exercised as conveniently’ as they could before the interference took place.

Before you make a legal expenses insurance claim or appoint solicitors, you will need to have: a good idea of what your rights are; tracked down reports and documents from the time of your purchase; kept an incident log and taken photographs of perceived transgressions.  Photographs should not be taken in a way to which exception could be taken or which might enflame an already tense situation, mindful that people are generally becoming more and more sensitive to photographs being taken of them.  You should record the dates of any photographs, who took them from where and of what they show.

If a dispute cannot be resolved straightway and lawyers become involved, expect a pre-action phase consisting of a Letter of Claim accompanied by salient evidence calling for a response and subsequent exchange of information. Legal proceedings should be a
last resort.

Disputes are frequently un-clearcut.  You should always be prepared to compromise. Success in court is never guaranteed and the Court encourages the use of mediation and other forms of Alternative Dispute Resolution.

It is always better to avoid a dispute with your neighbours which can be costly, and you will  also have to disclose a dispute which arises when if you decide to sell the property later.

Before any dispute gets out of hand, get in touch with our litigation team today to discuss your options.

Peter Burfoot can be contacted at p.burfoot@gullands.com