ROW problems

ROW problems

Postby cooperatkippax » Mon Jun 19, 2017 11:40 am

In 1997 I bought a terrace house which once belonged to the developer of all properties on the row of terraces and all surrounding land. each of the terrace houses own part of the back street and an allotment garden beyond. I also purchased a piece of land beyond (plot a)the allotment gardens (which originally belonged to the developer back in year dot). I have always accessed this plot A from the allotment garden that came with the house I bought.

In 1999 I separated the house from the allotment garden and section of road and sold the house with a new title and no Right of access. Since then I have purchased another access to plot A and gained planning consent. It is currently on the market and includes the sale of the allotment garden and section of road including its original ROW.

I have now received a solicitors letter from a neighbour saying that I can not use the ROW as it is being used to access Plot A.

The house I originally purchased had no deeds as such (seemingly normal for this scenario) but All the houses the developer built have full deeds with covenants and a Plan showing property and land being purchased, the back road and where the vendors property was.

The covenants state
'to the property owner full, free and uninterrupted access along the back street and any other streets that may be constructed and for any purpose. RESERVING NEVERTHELESS to the Vendor, heirs, Executers, trustees and Assigns and to all other persons they may grant the same similar rights along the back street.'


The deeds obviously reflecting the vendors intent to extend development at some time in the future and protecting any rights to grant further access to more properties.

My understanding when splitting the House from the the original Title would mean that I retained all rights assigned by the original Vendor. This would also give me all right the vendor had under the covenants including the granting of access to other people.

Any comments or Ideas on this before buying a solicitor a new Porsche!!
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Re: ROW problems

Postby mr sheen » Mon Jun 19, 2017 1:02 pm

You have created a complex scenario that really needs a professional opinion from someone who can refer to all the relevant deeds and documents.
There are a number of issues that need to be considered....
You do not own the backstreet so it is likely that you have no right to grant rights over said land.
When you bought land A, you theoretically didn't have a right to access it via the backstreet.
When you sold off the house you presumably had a solicitor who should have advised you of the issues you may have been creating, especially if you told them of your intentions.
When you sold part, you personally retained no rights since rights belong to land not people, however the allotment parcel of land is likely to have retained a right of access, but this would need to be looked into in more detail, it would have been helpful if this had been specified in the transfer of part of the title. However those rights did not extend to plot A, so land A can only gain such rights via prescription ie longterm usage or a grant of access which you cannot bestow since you don't own the backstreet.

The next question is what can the neighbour do about the current situation?
Are you relying on the backstreet to access plot A? Or does the backstreet now just access the allotment? What is he claiming in the solicitors letter?
The neighbour may pursue the matter via solicitors and you would need to reply to the letter with your defence to his assertions.
Depending on where the neighbour lives.....could he physically block the backstreet? If he went down that route, you may have a problem since in order to get an obstruction removed, you would then need to prove a right of way to plot A and this may be problematic.

If it was me, I would go to a specialist land solicitor with expertise in rights of way, along with all the relevant deeds of all properties and plot A and the solicitors letter and explain the situation and get a full assessment of your position before this becomes a costly problem.
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Re: ROW problems

Postby cooperatkippax » Mon Jun 19, 2017 1:20 pm

I do own part of the back street. The house was sold by creating a new separate titles for it and retaining the section of back street and allotment garden on the original title...Assuming the original vendors covenant was legal.. the original title and land should carry the original reserved rights which the vendor created?

It is obvious in the servient deeds that the vendor intended to build further roads and properties and needed to control his ability to grant further access as required.

The Plot A now has a separate access for planning purposes and is legally a separate parcel from the original allotment garden. I am selling the original allotment garden and section of road as part of the sale but not as a primary access to the building plot as it has its own. The Row is just a benefit to the allotment garden.

Also I have used this ROW to access Plot A for 21 years without legal interference, surely a prescriptive easement has been created as well.
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Re: ROW problems

Postby mr sheen » Mon Jun 19, 2017 1:39 pm

In order to grant a new ROW to plot A, all owners of the backstreet would have to grant it. You can only grant rights over the section you own.
Since you were legitimately accessing the allotment via the backstreet it is not certain that a prescriptive ROW to plot A will have been gained.
You can't use your interpretation of the intentions relating to the wider land since this would require knowing what the developer was thinking...you can only use what is in writing.
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Re: ROW problems

Postby cooperatkippax » Mon Jun 19, 2017 2:33 pm

you said...In order to grant a new ROW to plot A, all owners of the backstreet would have to grant it.

Surely the covenants wording on servient deeds and acceptance by the purchaser of the servient land gives an automatic grant to the vendor...How else could he be expected to protect his interest for future development.

the servient deeds specifically say...
'to the property owner full, free and uninterrupted access along the back street and any other streets that may be constructed and for any purpose. RESERVING NEVERTHELESS to the Vendor, heirs, Executers, trustees and Assigns and to all other persons they may grant the same similar rights along the back street.'

I think its very clear that the vendor had the intention of extending the street and granting further properties access.
Last edited by cooperatkippax on Mon Jun 19, 2017 2:40 pm, edited 1 time in total.
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Re: ROW problems

Postby MacadamB53 » Mon Jun 19, 2017 2:38 pm

cooperatkippax wrote:the servient deeds specifically say...

'to the property owner full, free and uninterrupted access along the back street and any other streets that may be constructed and for any purpose'


I think its very clear that the vendor had the intention of extending the street and granting further properties access.
on land owned by the vendor at the point of sale
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Re: ROW problems

Postby cooperatkippax » Mon Jun 19, 2017 2:42 pm

Macadam can you please expand
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Re: ROW problems

Postby mr sheen » Mon Jun 19, 2017 3:38 pm

cooperatkippax wrote:
Surely the covenants wording on servient deeds and acceptance by the purchaser of the servient land gives an automatic grant to the vendor...How else could he be expected to protect his interest for future development.

the servient deeds specifically say...
'to the property owner full, free and uninterrupted access along the back street and any other streets that may be constructed and for any purpose. RESERVING NEVERTHELESS to the Vendor, heirs, Executers, trustees and Assigns and to all other persons they may grant the same similar rights along the back street.'

I think its very clear that the vendor had the intention of extending the street and granting further properties access.


The deeds apply to the land being transferred at that time ie full free and uninterrupted ACCESS to said land. The vendors can only grant such rights over and to land they own....did they own plot A at the time?
Vendors often reserve rights and they have in this case reserved rights for themselves and their heirs etc to grant further rights......are you saying that you have been granted further rights by the original landowners? If they owned plot A at the time of original sale and granted rights over the backstreet to plot A and you bought plot A with such rights of access you are home free.

Other than that one cannot assume that they had anything 'in mind' and you can't read their minds to determine their intentions at the time. The law works on contracts not supposition.
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Re: ROW problems

Postby cooperatkippax » Mon Jun 19, 2017 6:14 pm

the vendor owned all the surrounding land but the plot A went out of ownership with the vendor until I bought from a third party when buying the vendors original house and allotment garden.
I still dont understand why, ass the vendors assignee I can not grant ROW permission when the vendor obviously wrote the covenant to allow it. As a developer he would surely have understood that he may purchase further land which he would require access to?
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Re: ROW problems

Postby mr sheen » Mon Jun 19, 2017 6:35 pm

The grant, as shown in the snippet you have disclosed, gives the property owner ie the purchaser ie you at the time, the rights to access the property you are purchasing but reserves for itself ie the [b]vendor[b] at the time of the sale ie the landowner, the right to access also and grant other rights to others and reserves these rights for all the vendors heirs etc and anyone else that they grant rights to.
You can also grant rights over property you own but each property Owner of the sections of the backstreet would have to grant the rights over their piece of it. You only own a piece of it, not it all. If you owned it all things would be different.

The original owners retained the right in the deed to grant further rights so you could contact them or their heirs etc and buy right to access plot A. Or you could negotiate with each current landowner for rights to pass and repass over their bit of the backstreet.

What exactly has the neighbours solicitor said in the letter?
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Re: ROW problems

Postby MacadamB53 » Mon Jun 19, 2017 7:01 pm

Hi cooperatkippax,

to the property owner full, free and uninterrupted access along the back street and any other streets that may be constructed and for any purpose.

the vendor granted a ROW along the back street and any other as-yet-unmade roads on his land that might be used to access the land being sold.

if he then sold off the remainder of his land and the buyer laid a new road which could be used to access your property then your property would benefit from a ROW over the new road.

however, if he'd already sold off another portion of his land before granting the above, and the buyer laid a new road which could be used to access your property then your property would not benefit from a ROW over this new road.

RESERVING NEVERTHELESS to the Vendor, heirs, Executers, trustees and Assigns and to all other persons they may grant the same similar rights along the back street.

this means that, even though the sale included part of the back road, the vendor and his successors in title would have the right to grant a ROW over that section of the back road (and all other sections).

do you now own the vendors original property - the one from which all others were sold off from?

Kind regards, Mac
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Re: ROW problems

Postby cooperatkippax » Mon Jun 19, 2017 8:32 pm

Yes, I still own the original property title... even though I sold the house which separated it from the original title...
I retained the Original.
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Re: ROW problems

Postby cooperatkippax » Tue Jun 20, 2017 11:30 am

I meant to say- I still own the original title of the original property the vendor owned...as such I am the assignee of his original property.
The original deeds plans for the other houses show the vendors property at that time with his name written on it, obviously this ties there deeds to the vendors property ( so I was told by my conveyancer) and I assume to any assignees.
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Re: ROW problems

Postby MacadamB53 » Tue Jun 20, 2017 2:20 pm

Hi cooperatkippax,

the property you bought in 1997 came with a ROW over the back street - which means visitors to either the "house" part or the "allotment" part could lawfully use the back street.

you have divided that property into two titles - the "house" part and the "allotment" part.

as part of that transfer you extinguished the ROW for the "house" part over the portion of the back street included in the "allotment" part.

so the "allotment" part still benefits from the original ROW.

does the proposed development seek to use the back street as an access point for land beyond the "allotment" part?

and you're wanting to use the reserved right to grant a ROW over the back street for this "other" land?

if so, the point which needs to understood is whether this would be within the terms of what was reserved - specifically would this be a "similar right along the back street".

I don't think it is, IMHO, because the "other" land cannot benefit from a similar right on its own - it needs an additional ROW over the "allotment" part.

ultimately, though, my opinion is no good - only a court can determine this for you if you cannot sort it out between yourselves.

Kind regards, Mac
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Re: ROW problems

Postby cooperatkippax » Tue Jun 20, 2017 7:04 pm

you are correct with regard to how the land has been divided and that the allotment still retains the ROW created by the vendors title.

The plot A has now a second access which for planning purpose is the primary access and does not require access from the ROW as such.
The allotment garden is being sold with the Plot as a supplementary area of garden as I have no use for it, but the allotment garden obviously
has the ROW which could be of benefit to a purchaser... or so I thought.
This would leave the owner with movement between the the two areas of land.
Question is
1. Does this use still amount to overburdening /bridging in general law.
2. Does this, as the original vendors assignee, allow me to do this under the reserved rights of covenant
3. Because no benefit or financial gain is made from use of the ROW in accessing the plot would it be 'ancillary use'.
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