Right of way queries

[Netnor]

Hello All,

We are in process of buying a 1930s house that has a ROW on the neighbouring property and same right is given to the neighbour on the one we are buying. Shaded areas on the attached plan.

In the old photos of the neighbouring property they had a garage upto the boundary(photo) and then 2015 they removed it and completed what still looks like a side extension. The property we are buying also seems to have a side extension on the ROW but the seller denies it as there is no digital record of it and the extension could be very old.

Both neighbours and current owner have secured their portion of ROW which itself is problematic, i suppose.

We are FTB and worried about these potential encroachment on ROW that seller denies. Could someone please suggest if we can find older records to verify the extension and how to find out why neighbours built garage on ROW till 2015? Thanks

 

[a twig]

Sorry but I’m not super clear on the issue, from what you say both the neighbour and the person you are buying from have secured their RoW, so you would get the same RoW provisions as the seller has.

The map seems to match the current state of affairs.

What are your concerns?

 

[Flyfisher]

Sounds like a job for your conveyancing solicitor. They should be able to define the RoW for both parties and, if necessary, get them recorded on the land registry title.

The trickier problem might be to align the neighbours understanding of the RoW with the legal reality.

 

[Cubist]

The photographs don't even appear to be of the same house on the left. If they are then it has been extended to incorporate approximately half of the garage.

 

[Netnor]

Thanks All, I agree I was not very clear on my ask, I now have more details. Our major concern is that both the neighbour and the seller have built upon the ROW without any legal arrangement.

I have found a planning application of the seller's property pre 2000 which has below wordings:

Proposal : Two storey side and part one/two storey rear extension.

Approved Subject to condition: A side space of 1 meter shall be provided between the east flank of the extension hereby permitted and the flank boundary of the property.

Now it seems that this extension is the side extension on the ROW. We are totally inexperienced when it comes to these proposals. But can someone please confirm if this is the approval for the side extension on the ROW? which would mean our seller has also encroached his neighbours ROW.

Our solicitor is taking too long to respond and we need to move on if there are such big issues.

 

[Netnor]

The photographs don't even appear to be of the same house on the left. If they are then it has been extended to incorporate approximately half of the garage.

it is the same house and they have probably encroached on the ROW and made it narrower as the original plan has the ROW started from the original side wall of the house.

 

[Cubist]

Our major concern is that both the neighbour and the seller have built upon the ROW without any legal arrangement.

If that were to be true then both your seller AND the neighbour could be forced to demolish the extensions and re-build to the original structures design. Assuming that both have sought and been granted Planning Permission and this has been granted AND they have complied with all BC requirements this in no way compromises the ROW for either party.

 

[Netnor]

Sounds like a job for your conveyancing solicitor. They should be able to define the RoW for both parties and, if necessary, get them recorded on the land registry title.

The trickier problem might be to align the neighbours understanding of the RoW with the legal reality.

I agree, we are chasing them for the clear advise, seems like our case is mostly been responded by a paralegal and

If that were to be true then both your seller AND the neighbour could be forced to demolish the extensions and re-build to the original structures design. Assuming that both have sought and been granted Planning Permission and this has been granted AND they have complied with all BC requirements this in no way compromises the ROW for either party.

Just to confirm, does that mean the construction will not be deemed illegal/forced to be demolished if it has been approved and complied with all BC? I can see both seller and neighbour have approved applications.

 

[mardinor]

You need proper legal advice. And be prepared for that to be unclear, contradictory and inconclusive (that is how lawyers make money).
From my similar experience I learned the hard way:
- ROW is literally the ability to pass (often it stipulates by foot, vehicle, etc) and does NOT imply free unhindered access across all the area shaded. So as you can still pass (at least by foot) through the side gates then ROW would appear to remain intact
- ROW does not mean there can be no gate
- the land register plans are illustrative and cannot be scaled, and will be overridden by physical barriers on the ground (eg extensions, fences)
- Use for 4 years is likely to override any previous easement
- You never get a definitive answer from lawyers, no matter how much you pay. It's only if you go to court you get a judgement, and that will bankrupt you and make your house hard to sell

You have two choices: walk away, or get clear written confirmation from your conveyancing solicitor that ROW remains then let it lie

 

[Netnor]

You need proper legal advice. And be prepared for that to be unclear, contradictory and inconclusive (that is how lawyers make money).
From my similar experience I learned the hard way:
- ROW is literally the ability to pass (often it stipulates by foot, vehicle, etc) and does NOT imply free unhindered access across all the area shaded. So as you can still pass (at least by foot) through the side gates then ROW would appear to remain intact
- ROW does not mean there can be no gate
- the land register plans are illustrative and cannot be scaled, and will be overridden by physical barriers on the ground (eg extensions, fences)
- Use for 4 years is likely to override any previous easement
- You never get a definitive answer from lawyers, no matter how much you pay. It's only if you go to court you get a judgement, and that will bankrupt you and make your house hard to sell

You have two choices: walk away, or get clear written confirmation from your conveyancing solicitor that ROW remains then let it lie

thank you for sharing the details. we are FTB and it seems like too much to consider even when we are buying a property at a stretched budget(from our perspective). I agree, so far our lawyer has just been forwarding the responses to our queries without weighing in at all about it.

 

[Flyfisher]

I agree, we are chasing them for the clear advise, seems like our case is mostly been responded by a paralegal and

Just to confirm, does that mean the construction will not be deemed illegal/forced to be demolished if it has been approved and complied with all BC? I can see both seller and neighbour have approved applications.

I'm no lawyer but I seriously doubt that just because a house/extension has full planning consent and has been constructed with full compliance to building regs and signed off, that it makes it legal to obstruct a RoW. After all, it's possible to obtain planning consent on land you don't actually own and building control is only concerned with compliance to building regs, so why would they be concerned about a RoW?

 

[Cubist]

Just to confirm, does that mean the construction will not be deemed illegal/forced to be demolished if it has been approved and complied with all BC? I can see both seller and neighbour have approved applications.

That is correct, no-one can enforce demolition and re-construction if the PP and BC regulations and conditions were complied with.

Also, neither of those works to both properties have in any obvious way blocked or inhibited the Right of Way rights associated with either building - access and passage to the rear of each building is clearly possible.

 

[fernicarry]

Was just about to say the same as @Flyfisher. Planners only look at the application from the point of view of planning rules. Its not their job to determine whether you have all the legal rights necessary to follow through. It would have been up to the owner at the time to take the necessary action to stop the work on the other side. They clearly didn't, maybe they even agreed to scratch each other's backs by both ignoring the RoW burden as both have extended into it. More likely they didn't know and didn't care hence the current seller's ambivalence to the suggestion.

Its a case of MAD. If one side decides to have a go at then other then the other can do the same right back to them. A legal dispute between neighbours destroys the value of both properties, even if one side is in the right, so its absolutely not worth starting.

Also, neither of those works to both properties have in any obvious way blocked or inhibited the Right of Way rights associated with either building

Not sure I agree with that. Would depend on how the titles are worded. The coloured areas will be related to a burden in the title which most likely requires the owner to allow the neighbour unhindered passage over the whole area. Building on even part of it would violate that even if there was still enough space left for a particular kind of activity (passing by car, taking out the bins etc.).

But its all water under the bridge now. Even if you could get a court to agree with that interpretation its vanishinly unlikely they will require the extensions to be removed so that the RoW is restored. They might ask one side to compensate the other for loss of rights but as above, they have both violatated each other's rights so it would be a wash.

 

[Cubist]

My assumption was/is that this is a Private, as opposed to Public, ROW. As such those rights would have been limited to the owners/occupiers of the properties and defined in their respective deeds. That original definition would/may have stipulated the width of the ROW and that vehicle access was permitted. When the extensions were built, the respective solicitors should have arranged amendment of the deeds accordingly to confirm the new and final nature of the ROW rights. In any event it is evident that the Boundary Line between the two houses has not been compromised and both have gated access leaving in the order of a metres width of free passage to allow access to the rear.

@Netnor , the advice offered by @mardinor is, in my opinion right, raise the matter with your solicitor to make sure he covers your backside if you're that worried.

 

[a twig]

Can almost guarantee the solicitor’s suggestion will be to purchase an indemnity policy for a few hundred £s and proceed with the purchase.

Unless there are stipulations about the type/width of access needed, it looks like you could still get down the neighbours side and vice versa through that gate so unlikely to be an issue.

We had RoW along the neighbour’s land down the side of our old house to access our property for maintenance, which had a gate at the road end and a gate at the other end onto our garden.

When the neighbour re-did the fence he understandably took the gate into our garden out, but as we still had access via his road gate, no foul.

 

[Netnor]

My assumption was/is that this is a Private, as opposed to Public, ROW. As such those rights would have been limited to the owners/occupiers of the properties and defined in their respective deeds. That original definition would/may have stipulated the width of the ROW and that vehicle access was permitted. When the extensions were built, the respective solicitors should have arranged amendment of the deeds accordingly to confirm the new and final nature of the ROW rights. In any event it is evident that the Boundary Line between the two houses has not been compromised and both have gated access leaving in the order of a metres width of free passage to allow access to the rear.

@Netnor , the advice offered by @mardinor is, in my opinion right, raise the matter with your solicitor to make sure he covers your backside if you're that worried.

Yes it is a private ROW.

 

[Netnor]

Can almost guarantee the solicitor’s suggestion will be to purchase an indemnity policy for a few hundred £s and proceed with the purchase

That is what we are anticipating as well, I think indemnity will not be useful here because it is a legal right clearly written in the deeds. I could be wrong though.

 

[a twig]

Yes - but you didn’t block it (if indeed it is blocked) so the indemnity policy would be to protect you from the cost of rectifying it should you ever need to.

Of course I am not a lawyer etc but have bought and sold a few houses in my time and have had to deal with missing building control sign off, planning and purchased many an expensive and ultimately unnecessary indemnity policy in my time