Flood right of way issue

clonion

We have some land that borders a river. A neighbour built a shed 7/8 years ago towards the back of our land and he has to access his shed over the river. He claims there was a verbal right of way agreement to go over our land to access his shed at times of flood some 50 odd years ago. Even if there was an agreement, both parties are long since dead and my understanding is that a verbal right of way agreement dies when either party dies. There is no written right of way on our deeds. This man's father tried to assert a claim about 30 years ago but never replied to the solicitor's letter issued by my family.

Anyway, he is now claiming he needs access to feed his animals in the shed and that he will use the Department of Agriculture to force his claim due to animal welfare. Has he any claim? Can he force access?

coylemj

I'm pretty sure there is no such thing as a 'verbal' right of way. He won't be able to resurrect a long dead (if it ever existed) right of way simply by you allowing him to access his shed or animals in an emergency, otherwise it would give rise to the 'appalling vista' of a landowner refusing to allow way-leave to a neighbour in distress under the threat that he would be ceding a right of way based on a one-off concession.

brian_t

clonion wrote: »

Anyway, he is now claiming he needs access to feed his animals in the shed and that he will use the Department of Agriculture to force his claim due to animal welfare. Has he any claim? Can he force access?

I assume the river is now flooded.

Does he have alternative access available to him if you refuse him access via your land.

brian_t

coylemj wrote: »

He won't be able to resurrect a long dead (if it ever existed) right of way simply by you allowing him to access his shed or animals in an emergency,

According to what the OP wrote, the "right of way" would only happen when the river was flooded.

clonion wrote: »

He claims there was a verbal right of way agreement to go over our land to access his shed at times of flood.

nuac

I have come across such informal arrangements along the coast.

E,g where a high spring tide floods the normal road or other access a landowner would allow his neighbour to cross his land to to get to stock which were otherwise unreachable. It was a common enough arrangement between farmers.

Would not be registered anywhere as any sort of legal right, but part of the normal give and take between neighbours.

I have had difficulty in explaining this idea to new owners coming into the area, e.g. non-nationals or holiday home owners. Most, if they have any sense, agree to honour a local custom.

When Germans, Dutch etc bought property in the West this concept took some time to sink in

coylemj

brian_t wrote: »

According to what the OP wrote, the "right of way" would only happen when the river was flooded.

It's not in the deeds and if there ever was an unwritten right of way, it hasn't been asserted or exercised in over 30 years so it no longer exists, flood or no flood.

roverrules

I would think that if there were animals/livestock in distress then the authorities would be entitled to access them via whatever route was needed to "rescue" them from their predicament, if that extended to granting right of way to tend them on a "tending" to basis might be a different matter.

Can he not move them to a safer location, albeit enforced on the OP by animal welfare concerns?

coylemj

I believe that on animal welfare grounds the OP should allow the guy to get access to his animals but I don't believe that allowing such access will have any long term legal implications. The OP and his family appear to be suspicious of the guy's motives in making the demand for access.

clonion

Thank you all for your replies. We don't want to see the animals hungry, but the owner is a bit of a trouble maker, hence the hesitation in allowing him access. He has persisted in claiming the right of way, so it's good to know that a one time access isn't conceding a right of way. We're inland, and I can't imagine it would affect too many people in this area.

This place floods a few times every winter, but he claimed to have built the shed knowing he had this right of way. We have told him it was negligent to have built in this location but he turns a blind eye to that! Perhaps allowing him access but pointing out his own neglect and welfare issues is the way to go!

coylemj

Tell him he can have access if he signs a declaration renouncing any claim to a right of way now and into the future.

Pat Mustard

clonion wrote: »

This place floods a few times every winter, but he claimed to have built the shed knowing he had this right of way.

...

Perhaps allowing him access but pointing out his own neglect and welfare issues is the way to go!

This guy sounds like trouble.

If you are going to allow him access, get your solicitor to draw up the agreement and send it to his solicitor and ask him to pay all legal costs.

You might think that you are being kind to this guy when he is in trouble but people like him can be dangerous so you need to be careful.

The_Minister

What Pat Mustard said.

If you do insist on doing it yourself, make sure to specify in writing that it is being done entirely for reasons of neighbourliness and is not in any way a recognition of any right he may claim in the land.

Solicitor would be a good idea - spend hundreds now to save thousands then.

nuac

Clonion

Solicitor time.

These situations are rarely improved by DIY solutions