Nyree Applegarth, Head of Property Litigation was instructed to act for Mr and Mrs S who owned a property in Salcombe. The property had been purchased by them for them to use at weekends and during holidays until they retired at which time they intended to relocate and live there permanently.
The property was situated on the cliff side next to the sea and immediately below the client's property was a large property owned by a third party, sleeping up to 10 people, which had been constructed from a bespoke design to take advantage of the stunning beach position.
The neighbouring property was only accessible via a steep set of steps leading down from the clients’ garden. The clients noted after they had been spending a number of weekends at their property, that there were large groups of holiday makers using the neighbouring property which was being let for holiday letting purposes.
The letting was causing a huge amount of disturbance to the clients because typically it meant that every Friday evening a large group of holiday makers would arrive and then have to pass very close to the windows of the clients’ property in order to access the neighbouring property.
Typically, because the holiday makers had paid significant amounts of money to stay in the neighbouring property they made full use of its offering and paid little regard to any disturbance they were causing to any of their neighbours.
It transpired that the neighbouring property was subject to a restrictive covenant that provided it could only be used for residential purposes. We were therefore instructed to write to the owners of the neighbouring property pointing out that holiday lettings offended the restrictive covenant and asking them to cease anything other than residential use.
The neighbours refused to cease their holiday letting business and proceedings were issued asking the Court to grant an injunction to restrain the neighbours from continuing with the holiday letting. In response to those proceedings the neighbours then raised an issue about the clients’ rights to moor a boat outside their property and claimed that the clients did not have any right to attach the anchoring rope from their boat to a set of steps on the foreshore which the neighbours had purchased.
The two issues in the proceedings therefore related to whether or not the neighbours were lawfully able to holiday let their property and if not the amount of damages that were payable to the clients for the disturbance and inconvenience and secondly whether in the absence of any written and recorded rights for the clients to attach and anchor there and moor their boats to the claimants foreshore, they had acquired a right through long use given the fact that their predecessors in title and they had attached to the boats to the foreshore steps in excess of 50 years?
The evidential burden fell on the clients to prove that they had attached the boat to the foreshore for in excess of at least 20 years, and resulted in the clients being able to produce witness statements from relatives of their predecessors in title, the harbour master and residents of Salcombe to substantiate that they had moored their boat on the foreshore for at least 20 years.
The trial lasted over 9 days at the High Court in Bristol and resulted in the Court confirming that the neighbours were unlawfully holiday letting their property and ordering that that must cease. A small award of damages was also made in favour of the clients to compensate them for their disturbance.
The clients were also successful in establishing that they had acquired a prescriptive easement through long use. By mooring the boat on the foreshore for an excess of 20 years and that they therefore had the ongoing right to do so.
The neighbours were ordered to pay substantial costs to the clients which were in excess of £200,000.
