2020-02-16
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Rights of access for housing associations

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Posted by Mary Rouse on 30 May 2018

Mary Rouse - Property Litigation Lawyer
Mary Rouse Partner

Sometimes, housing associations have rights of access over land owned by others. These rights provide for access to homes and facilities.  However, these can be blocked by the land owner or others placing items onto the right of way. This can be relatively straight forward to resolve where the abandoned items are easily removed, but sometimes the discarded items are large, heavy and clearly belong to the neighbouring land owner. This leads to the access being unusable.

Recently, we advised a housing association which had discovered that a neighbouring land owner ( not a tenant of the association) had tipped large amounts of building rumble onto a driveway which provided vehicular access to some of the association’s buildings. The drive way was blocked and could not be used. It was clear from the title documents that the association had a right to use the driveway, but the large amount of building waste made that use impossible. Dialogue with the neighbour proved fruitless and it was necessary to threaten and then issue court proceedings for an injunction to remove the interference with the association’s right of access and also to prevent any further inference. Such cases are rare, but a swift and effective legal remedy is available to protect such rights.

Not all obstructions are actionable through the courts. The interference must be substantial before action can be taken. It is necessary to consider  whether the right of way can be substantially and practically exercised as conveniently as it was before the obstruction.

In our case, the association could show that it had the benefit of the right of way as set out expressly in its title deeds. The nature and the scope of the right of way was clearly defined and therefore, in order to be successful in obtaining a remedy at court it has to show that the interference with its right was substantial.

Given the amount of building rubble dumped on the driveway in this case, there was no question that there had been a substantial interference. There was also no sign that the blockage was temporary and the land owner was not willing to remove the rubble within a reasonable time frame. Therefore, referring the matter to the court was the only sensible option to secure a resolution.

Seeking an injunction can seem like a very drastic step, but in many cases it proves to be the only effective remedy available. Injunctions are awarded at the discretion of the court. When asked to order an injunction, the court will consider the evidence before it carefully and assess whether the party asking for the injunction could be compensated in damages instead. Rarely in cases where a right of way has been interfered with so as to prevent access, will damages be an adequate remedy. The court will also consider whether the party asking for the injunction has delayed in bring the matter before the court and, if so, whether such delay means that it would be unfair on the other party to grant the injunction. Therefore, it makes sense to act promptly when an interference with a right of way is discovered otherwise there is a risk than an injunction will not be granted.

An injunction is a very effective remedy and if granted, will remove further interference with the right of way. However, if the party causing the interference does not comply with the order, the remedies lie with the court in relation to the breach. Failure to comply with the order will be contempt of court and can result in the offender being sent to prison or having assets seized.

Happily, in our case, on receiving the court papers, the neighbour agreed to remove the building rubble and pay our client’s the legal costs.

About the author

Mary Rouse

Partner

Mary is an experienced property litigation lawyer.

Mary Rouse

Mary is an experienced property litigation lawyer.

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