Q: A right of way exists between my home and my neighbor’s. My neighbor stores their refuse bins on this right of way. They have been asked on numerous occasions to store bins on their own property but refuse to do so. For vehicular access, the bins have to be removed (by me) as they pose an obstruction. Inevitably, the bins are put back. What can be done about this? If we have to go to court, who might pay the costs? Can you throw any light or solution on this matter?
Dear Reader,
The first thing you would need to examine is how the right of way arises. Often, rights of way between homes are set out in a formal Deed of Easements or similar. This would generally set out the obligations and benefits that accrue to each property, and would usually include statements as to whether or not obstructions such as bins are allowed on the right of way. Of course, it would be unusual to allow such obstructions.
It is possible that the right of way may exist by reason of long use, and that right might be registered or unregistered on your individual properties.
You would also need to ascertain who owns the land on which the right of way runs. This might be you or another neighbour, but it is possible the owner is the Local Authority or the original developer in the case of a housing estate.
You can bring proceedings as regards an obstruction on the right of way if it is “substantial and real”, and not be unreasonable. Each case will depend on its circumstances. For example, a gate over a right of way is always going to be a “substantial and real” obstruction, but the courts would need to consider whether the obstruction is reasonable.
In circumstances where your neighbor has alternatives regarding bin storage, it is likely that the obstruction would not be reasonable.
Your solicitor at the first instance should write to the neighbor and also to owner of the land in question. Your neighbor would have a duty not to obstruct the right of way, and the owner of the land (most likely) has a duty to prevent such obstructions coming into place. If this is not successful, you are entitled to bring the matter to court.
If you are successful, the courts would usually award costs against your neighbor (and potentially the owner of the land). That said, actually recovering sums on foot of the order might be less than straightforward. The courts also have a discretion with regard to costs, and it is entirely open for them to decide that each party should bear their own legal costs. You should consult closely with your solicitor.
