Question
Our neighbour has not used their gate to gain access to a joint lane for at least 13 years. They had right-of-way access to this lane at one point and they used it. Do they still have right of way — even though they have not used it in all this time? Does right-of-way cease? Does it make a difference that their gate is still there but not used? I know right-of-way issues are very tricky but I would be interested in your opinion.
Answer
It is assumed from the information provided that you and your neighbour are the only parties with an interest or rights over the lane. You do not say if the lane is your property, ie you are the owner, freehold or leasehold, in the entire lane and that your neighbour has/had a right-of-way over your property. You describe it as a joint lane, which suggests that each of you may have title, freehold or leasehold, in half/part of the lane adjacent to your respective properties and each half/part is subject to a right-of-way in favour of the other party. It is likely that in either situation the right of way still exists, in particular if it is included in the deeds and/or registered on the respective folios in the Land Registry.
However, legal advice is necessary to determine the current status of the right-of-way. To dispossess your neighbour of their right-of-way it may be necessary to establish adverse possession, which requires specific conditions — the existence of the gate may be relevant. And if the right-of-way in favour of your neighbour is essential for access to their property or to get access to the public road from their property, this factor will be significant in the event of litigation.
My advice is for you to consult with your solicitor to determine your next steps.
Patrick Shine is a chartered geomatics surveyor and member of the SCSI