# Adverse Possession on Right of Way



## paddywhacker (5 Dec 2007)

Anyone have any information/advice about the concept of adverse possession?  I pass through a right of way through a vacant site to get to my house and the right of way has been there for 30 years. 

The site on which the right of way stands has never been developed and has lain empty for as long as I can remember but the fact that the site is vacant has led to it being used for dumping and antisocial behaviour (drinking, drug-taking by local youths, etc). They access it through the same right of way I use so the area is a bit of a no-man's land/free for all but all the messing has been affecting me no end and I've been cleaning up the dumping and debris for years.

In order to stop the dumping, anti-social behaviour etc, I would like to investigate taking possession of this right of way and maybe try to erect a private gate at the entrance which would effectively block the revellers and dumpers. 

Due to the time elapsed and the fact that the other site has not been developed and the owner plays no part whatsoever in the upkeep, what are my chances of taking adverse possession?

Would be grateful for opinions from anyone whose had experience of this type of thing. 
Thanks


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## deew (5 Dec 2007)

Hi, I think to gain adverse possession, the land in question should be used/worked as if it was yours with no interference for 12 years. 
You could errect a gate and if the owner does nothing I understand they are more or less agreeing to you taking it over.In view of the fact that you have been using it for 30 years, id say you have an excellent case.STRONLY ADVISE YOU TO SEE A SOLICTOR ABOUT IT AS MY ADVICE CANNOT BE BE GUAREENTED AND MAY BE OUT OF DATE.
Deew


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## paddywhacker (6 Dec 2007)

Thanks deew, appreciate the response. Know it is a complex legal issue but just wondered if anyone had experience of something similar.


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## Stifster (6 Dec 2007)

Having a right of way and seeking adverse possession are two very different things.

An adverse possession claim would be where you had developed the vacant site rather than simply passed over or through it. 

Do you know who actually owns the site? You could block it off, do something with the land and then your interest would be adverse to the owners.


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## paddywhacker (6 Dec 2007)

Thanks Stifster, I'm not considering taking possession of the site, just the right of way on it (which runs down along the edge of the site and not straight across it or anything)

As I said, because the ROW is a no-man's land at the moment, it's being used for all sorts of trouble and if I attain clear ownership of it, rather than just the right of access, then I can gate it up and stop the rubbishing, divilment etc. Just don't know if I have the right to do that. By gating it up I wouldnt be blocking access to the site (as it can still be accessed from three other sides, just the strip along the side that is the right of way.

In short, is it possible to claim adverse possession on a right of way only?


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## Stifster (6 Dec 2007)

In short, and in my opinion, no. They are two completely separate concepts. Adverse possession relates to ownership and possession while a right of way is simply a right to pass over.

You could claim adverse possession on the strip of ground that the right of way exists over.

Why not put up the gate and see what happens?


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## RainyDay (6 Dec 2007)

Give Pat Kenny a call and ask for his advice.


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## Caveat (6 Dec 2007)

RainyDay said:


> Give Pat Kenny a call and ask for his advice.


 
Hmmm


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## paddywhacker (6 Dec 2007)

Stifster said:


> In short, and in my opinion, no. They are two completely separate concepts. Adverse possession relates to ownership and possession while a right of way is simply a right to pass over.
> 
> You could claim adverse possession on the strip of ground that the right of way exists over.


 
Yes, claiming adverse possession on the strip of land is what I'd hope to do and thought due to the 30 year time period etc that I might have some other legal rights to it other than just to pass over it. 

But am wondering is putting up a gate some kind of non-verbal message to the absent owner that I'm asserting some form of right? And if he objects, how would this be seen in the eyes of the law, particularly as it is his negligence that has led the place to go to rack and ruin and by overrun by troublemakers, forcing me to resort to the gate in the first place?


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## csirl (6 Dec 2007)

> Yes, claiming adverse possession on the strip of land is what I'd hope to do and thought due to the 30 year time period etc that I might have some other legal rights to it other than just to pass over it.


 
As other people were using the strip of land, albeit for anti-social behaviour, for the past number of years, you do not have an adverse possession claim.

The are a couple option you havent explored, but which may be the more appropriate. Some local authorities have laws on derelict sites, whereby if a site in an urban area is left undeveloped for a certain number of years, it becomes the property of the local authority who will either sell it or secure it against use for antisocial behaviour - would be worth contacting them.

The above is generally used where the owner is known, but does nothing with the land. Where the owner is unknown or deceased with no known relatives, then it becomes an escheated estate and automatically the property of the Minister for Finance.


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## paddywhacker (11 Dec 2007)

Many thanks for your replies and info, have since spoken to my solicitor about it and it appears that yes, you cannot claim adverse possession on a right of way. And it seems I can't block it off either so will have to put up with the messing for good....


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## euroDilbert (11 Dec 2007)

Would it be possible to actually buy it from the owner ?


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## Vanilla (11 Dec 2007)

paddywhacker said:


> Many thanks for your replies and info, have since spoken to my solicitor about it and it appears that yes, you cannot claim adverse possession on a right of way. And it seems I can't block it off either so will have to put up with the messing for good....


 
Does any one else use the right of way as a right of way IYKWIM


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## paddywhacker (12 Dec 2007)

Would love the opportunity to buy it but the owner is impossible to find (I have tried many times) and nobody but ourselves has a right to use it ie we are the only house at the bottom of it. But as I said this doesn't stop the messers treating it as a no-man's land....


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## Importer (12 Dec 2007)

Go ahead and put up the gate. The owner will find YOU soon enough


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## csirl (12 Dec 2007)

Have you tried a search in the Land Registry to get the owners details?


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## nisswhippy (23 Jan 2008)

To all who replied. I have a similar situation over Right Of Way. For over 50 years my family has been maintaining a stretch of land for the purposes of access to our holdings. The owner of the land surrounding this lane is claiming ownership of the lane. He has never maintained this lane at any point in time for the past 50 years, either the surface or the hedgerows. Under the guidance of the local council we have tried to have this lane surface suitably surfaced by the council. Applications form submitted with all users signatures, but now the owner is refusing the council access. What can I do solve the problem?


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## Stifster (23 Jan 2008)

I fear, very little, maintaining a right of way does not give ownership. Indeed it could be that the right of way was given subject to the grantee (your family) carrying out the maintenance.

Have you asked a solicitor to examine the basis for the RoW?


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