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Neighbour Refusing Access For Repairs?

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Although most of us enjoy good relations with our neighbours, relationships can sometimes be strained. This is often put to the test when one neighbour requires access to the others property in order to undertake repairs/works that cannot be carried out without such access. Hopefully the neighbour will be happy to oblige but what if they are difficult and refuse to allow access? If the repairs cannot be undertaken the result is likely to be that the value of the property is reduced and become hard to sell. There may also be a safety risk.

So what can be done?

It is often the case that the title documents, especially for properties that have been built on estates within the last fifty years or so, will contain express rights of access for maintenance purposes which when brought to the attention of the awkward neighbour will bring about a swift resolution. However, if the title documents do not contain such rights, then the situation may be tricky to resolve.

If all else fails, then an application to the Court for an Access Order under the Access to Neighbouring Land Act 1992 can be considered. This Act was introduced with a view to giving the courts powers to grant a right of access over a neighbour’s land in limited circumstances and subject to safeguards to protect the neighbour’s interest. Previously rights of access had been very limited and only existed where, for example, they had been granted by a formal easement (as I have mentioned above) or in circumstances where the right may have been acquired by way of long use.

The objective of the Act was to simplify the law by creating a general right of access and to enable property owners who wish to carry out works, which are reasonably necessary for the preservation of their property, to obtain access to the neighbouring land in order to do so.

How easy is it to make an application?

Inevitably it will take time to prepare the application and as it is most likely that lawyers will have to be instructed there will be some cost. The applicant will then have to satisfy the Court that the proposed works are reasonably necessary for the preservation of the whole or any part of their property, and that it would be substantially more difficult to carry out the works without access to the neighbouring land. However, it should be noted that the Court will not grant the Order if this would cause an interference with, or disturbance of, the neighbours (or any other persons) enjoyment of their land or would cause hardship to the neighbour to such extent that it would be unreasonable for the Court to make the Order.

Accordingly, there is no certainty of success with an application.

It was only last year that a case concerning the Act came before the High Court, this being Prime Holdings 11 Ltd v Thurloe Lodge Ltd.  In this case the applicant had needed access to a passageway on their neighbour’s property in order to erect scaffolding to facilitate the re-rendering and re-painting of the wall to their house. The neighbour however had refused to allow this. The Court granted the Order and in doing so held that in determining an application for an Access Order five questions must be considered:

1.Are the works reasonably necessary for the preservation of the whole or any part of the applicant's land? If the answer is “no” then an Order cannot be made. The Court commented that the works do not need to be of an urgent nature and that it will be irrelevant if they have become necessary because of other works that the applicant has carried out to their property.

Would it be impossible, or substantially more difficult, to carry out the works without entry to the other land? Again, if the answer is “no” an Order cannot be made.

If the answer to both 1 and 2 is “yes” then we can move on to questions 3 and 4.

If the order is granted, would the adjoining owner or any other person suffer interference with, or disturbance of, their use or enjoyment of the adjoining land? The Court stated that “any other person” can include an occupier of the neighbour’s land or a contractor who is working on the neighbour’s land.

4.If the order is granted, would the adjoining owner or any other person occupying the land suffer hardship? It was held that mere inconvenience does not amount to hardship. Although “hardship” can include financial hardship, the Act includes the power for the Court to award compensation to the neighbour to cover this.

If the answer to 3 and 4 is “no” then the Order will be granted. If however the answer to either of them is “yes” then we move on to the final question 5.

5.Would the interference, disturbance or hardship arising from entry onto the land occur to such a degree that it would be unreasonable for the court to make the order? The Court said that minor degrees of interference disturbance or hardship would not render it unreasonable for the Court to make the order.

It is clear that an Access Order cannot be obtained for any repairs merely because the owner considers them to be necessary, or because it is more convenient to have access to the neighbouring property. It must be shown that they are needed for the reasonable preservation of their property and that it would be impossible, or substantially more difficult, to carry out the works without such access.

If you do need access to your neighbour’s property, the best advice is to make a polite approach to the neighbour and give plenty of notice wherever possible, so that the access can hopefully be agreed amicably without the need to an application to the Court.

For an initial consultation or quotation regarding advice about access to neighbouring land, please contact the Feldon Dunsmore team on 01926 954694