We loathe our neighbours - can we put a fence down the middle of our shared driveway?

Daily Mail​

8 hours ago

We live in a house with a shared driveway and have had a history of problems with our neighbours.
They have converted half of their front garden to park on, and their car is half on their front garden and half on our shared driveway.
From what I understand, the shared driveway is supposed to be kept free as a right of way, but I'm not certain.
According to the deeds for our house, the borderline of our property is straight down the middle of the shared driveway.
We'd like to build a fence or wall down the middle of the shared driveway so we can make our front garden bigger and get to use our entire property properly. Can we do this and what happens if the neighbours object?
Jane Denton, of This is Money, replies: When buying a home, it's easy to get carried away and overlook issues like a shared driveway which could become problematic in the future.
A shared driveway is a driveway that more than one household requires access to.
Many new-build developers favour shared driveways as they help economise on space, while other older properties built before the 1930s often feature them too.
As well as parking, access or bin troubles, shared driveways will require occasionally require maintenance. A maintenance agreement between neighbours for a shared driveway is a good way to help prevent disputes.
However, much you despise your neighbours and their driveway antics, before jumping in and erecting a fence or wall down the middle of your shared driveway, you should pause for thought.
Review your property's title deeds and other relevant documentation carefully to check what you can and cannot do when it comes to the shared driveway and determine precisely where the boundaries are located.
You can't restrict your neighbour's access and everyone involved will need to agree how to split it.
If you do split the driveway, the title deeds and deeds of easements for the properties affected will need to be amended to reflect any changes.
While it is not acceptable for part of your neighbour's car to be parked on your side of the shared driveway, by building a fence or wall down the middle you could end up obstructing your neighbour's right of way. This could lead to a host of legal issues which are best avoided.
You may want to consider asking a solicitor to check if and how you can divide the driveway, though will will come at a cost, as will a fence or wall installation.
I've asked two solicitors for their thoughts on your problem.
James Naylor, a partner at Naylor Solicitors, says: Next door is, of course, in the immortal words of that 1980s theme song, 'only a footstep away'—which means I'm often asked by clients if they can build a fence down the middle of shared driveway to keep their neighbour's car off their patch.
A shared driveway often means each property owner owns up to the centre line, but both parties enjoy a right of way over the whole width for access.
This right of way is typically for passing and repassing—in other words, for coming and going, not for parking, picnicking, or storing your collection of garden gnomes, unless your deeds say otherwise.
While your deeds may show the boundary running down the middle—and, yes, that's important for ownership—it does not override the right of way.
The real headline act here is the right of way itself. If your deeds specify it, the driveway must always be kept available for access. There are no exceptions for vintage Minis or Lime bikes.
Parking a vehicle so that it blocks the shared driveway, even if it's just a tyre over the line, is generally considered an unlawful interference with the right of way.
Unless the deeds specifically say otherwise, neither party has a legal right to park on the shared driveway.
Parking on the shared area, even if you're technically on 'your' half, can still be an obstruction if it interferes with your neighbour's right of way.
Equally, if your neighbour parks with half their car on your side, they may be obstructing your right of way.
If the deeds are silent on parking, the default position is that parking isn't allowed if it interferes with access, even if the land is under your own wheels.
Therefore, building a fence or wall down the middle of the driveway might sound tempting—perhaps you're channelling your inner Donald Trump and wondering who's going to pay for it.
But here's the snag. If you do, you could be obstructing your neighbour's right of way, just as they're obstructing yours by parking.
Even if you own the land, you can't block the shared access.
If you build a barrier, your neighbour could object, and you might find yourself starring in your own episode of Neighbours at War—with a court order to remove it as the season finale.
Remember, while next door may be 'only a footstep away', you don't want that footstep to end up in court—especially if it's tripping over a fence that you shouldn't have built.
Olivia Egdell-Page, a partner and head of property at Joseph A. Jones & Co., says: You may not be surprised to hear that shared driveways can often lead to disagreements between neighbours.
It is essential that you check provisions regarding such arrangements meticulously when purchasing a property accessed in this way.
It is difficult to give specific advice without having sight of the legal documents, however I am envisaging from your query that the driveway is used by and shared between the two properties, with each property owning the section that is coextensive with their property.
Each property will have the benefit of rights of way over the neighbour's land, on the basis that their own section will be subject to reciprocal rights in favour of their neighbour to use that part of the driveway.
Usually, a scheme of enforceable covenants will be included in the legal documents alongside these rights of way.
The covenants typically prevent either party from using their part of the driveway in a way that would obstruct it's use by the neighbour, either with parking vehicles or changing the surface or use of the land.
It seems that your neighbours have done just that, using part of their driveway as a garden which means they are encroaching on your land when they park their car.
Before taking action to build a fence or wall, or otherwise altering the driveway, my suggestion would be that you need to check your title documents and ensure that by taking such steps you will not be in breach of covenant or obstructing or interfering with an easement or right of way in favour of your neighbour.
Interference is the legal term for a scenario where someone is preventing you exercising your right of way, which can result in court proceedings in some circumstances.
Not every interference will be actionable, however, and further action can be taken only if the interference is considered substantial.
Where the landowner is able to use the right of way as conveniently and practically as before, this may not amount to a substantial interference.
So, the legal implications of taking steps to separate the properties will depend on the layout of the properties, the size of the area in question and practicalities such as turning space and parking.
My recommendation would be for you to instruct a solicitor locally to you to attend the property and advise you as to the potential implications before you take any further action.
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