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Access and ‘Rights of Way’

Nicky Richmond of Brecher comments on 'rights of way'

You may have read about the case of the disputed right of way, in Mobberley, Cheshire, home to many a wealthy entrepreneur and more than a few footballers. The case revolves around the ownership of a ditch, used by a Mr and Mrs Gilks, to access a track, using it as a short cut when driving into town. At first, the Gilks were held to have owned the ditch, but the case is back in court again. The adjoining owners, the Hodgsons, are producing historic documents to challenge the first finding, saying that the documents show the ownership only extends to the middle of the ditch, meaning the Gilks cannot drive over the other half, to get to the track. The Gilks are apparently now claiming that if they don't own the necessary ditch then they have a right to use it because it has been used that way for many years, presumably claiming what is known as an easement, which would give them such a right.

So they continue to slug it out and the only real winners so far are the lawyers, with costs already said to be over £200,000 apiece!
There are two issues here: one is the disputed ownership and the other is the claim for an easement by a 'long user'.

It is no coincidence that the two properties were originally one parcel of land. It is common to come across boundary disputes where properties have been split, or where parts have been sold off for development. Ask any property lawyer about transfers of part - they are complicated documents, calling for careful and specific drafting to cover the particular property and it is often the case that lawyers aren't given the full picture by their clients, so may not be aware of everything that might need to be covered. Not only that, but the majority of lawyers never inspect and have to rely on the accuracy of plans and other information that they are given.

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