Splitting a plot (house from garden&garage) ROW implications

Splitting a plot (house from garden&garage) ROW implications

Postby Stikko » Tue Jun 20, 2017 11:15 am

Hi,

I'm new to the forum and joined as the Q&A on here was the most relevant to an issue I have concerning my forecourt and a ROW a neighbour has over it.
My neighbour died and the new owner is maximising the value of the estate by splitting the house from the garage and garden which are accessed by crossing my forecourt. The house is Sold but not Completed and the description has no mention of my drive but I'm told the Deeds will be altered to reflect this.
The new owner's plan is to apply for permission to demolish the garage and build a small house with the footprint of the garage (so pretty small). This new house will depend on access across my forecourt. My Title says the access is for the 'Owner and occupier of Plot 1' which on the map is the House. Finally my Deeds show a different layout of parking to those of the House.

My questions:
1. I understand a Deed of termination needs to be signed to remove a ROW from the house yet I have not been contacted
2. Does a ROW from A to B become invalid when A no longer needs access and has had it removed ie the House no longer would have a purpose to cross drive.
3. Does the ROW persist when it used for entirely different purpose (burden) ie now as prime vehicle and pedestrian access to a house rather than a garage.
4. Which Deed/Title takes precedence when they differ on the parking for example ?

My goal is to find a way to stop the planning permission because of a lack of access.

PS Legal insurance not covering this as its a clarification I want and not currently a dispute (but will become so probably).
Thanks
Chris
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Re: Splitting a plot (house from garden&garage) ROW implicat

Postby jdfi » Tue Jun 20, 2017 11:22 pm

In general the right would be to access any of the land in the present curtilage.

If he splits as described both A and B will continue to benefit. He would be silly to terminate either right.

Note - a diagram and the exact words would assist here.
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Re: Splitting a plot (house from garden&garage) ROW implicat

Postby Stikko » Wed Jun 21, 2017 9:12 am

He may want to terminate access from the house so as to provide enough parking for the planning permission for a new house.
He has advertised the original house without mention of any access but I haven't heard anything from his solicitor to say that is going to happen.

I understood I cant post pictures as a newbies until my 3rd or 4th post. But will when I get there.
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Re: Splitting a plot (house from garden&garage) ROW implicat

Postby pilman » Wed Jun 21, 2017 11:32 am

Title says the access is for the 'Owner and occupier of Plot 1' which on the map is the House.
Although you used the word "house" in that sentence, the word "plot" would seem to indicate that all of the "plot" was to be the land that had the benefit of a right of way over your land. Normally a plot includes all of the land, rather than just a house built on one part of the plot.

If that is a correct interpretation of the deed that granted such a right of way then splitting up the plot so that the house remains on a smaller part of the property while a further area of the plot gets redeveloped, then each part will have a right of way over your land.

Perhaps you can type in the wording used when that grant was made, rather than trying to post an image which does not always work on the Garden Law web-site.
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Re: Splitting a plot (house from garden&garage) ROW implicat

Postby Stikko » Sat Jun 24, 2017 6:17 pm

Hi, thanks for replies.

The wording on my neighbours Title - Second Schedule says this:

(e) A right of way at all times with or without private motor vehicles over that part of the drive forecourt and turning area shown coloured green on the plan together with the right to use the car parking areas on the area shown coloured green on the plan for the parking of private vehicles

PROVIDED ALWAYS that the rights in this Schedule hereinbefore granted shall not apply to or be exercised over any land transferred or to be transferred to or vested in any Electricity Board or other statutory undertaking.
Attachments
Neighbour block diagram sml.jpg
Neighbours block plan
Neighbour block diagram sml.jpg (143.65 KiB) Viewed 566 times
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Re: Splitting a plot (house from garden&garage) ROW implicat

Postby Stikko » Sat Jun 24, 2017 6:38 pm

My Title (Plot 8 on the block diagrams) says in Schedule 3:

(2) There is also excepted and reserved out of this Transfer unto the Vendor and the owners and occupiers for the time being of Plots 1 and 2 served b the drive forecourt and turning area shown coloured green on the said plan a right of way at all times with or without private motor vehicles over that part of the said drive forecourt and turning area as is included in the land hereby transferred the owner of Plot 2 paying 25% of the cost of maintaining and keeping the said drive forecourt and turning area repaired together with the right for the owners and occupiers for the time being of Plots 1 and 2 to use the car parking areas shown coloured green and hatched black on the said plan for the parking of private vehicles


Note my neighbours house is separated from his garage and garden by the court itself shared between 8 properties and then my forecourt. When his Title says Plot 1 and you look at either block diagram there is nothing to suggest it also includes the garage and garden and why would it when the ROW was to get from the house to the garage.

All advice appreciated. Thanks.
Attachments
Owner of drives Block diagram sml.jpg
My Block diagram Plot 8
Owner of drives Block diagram sml.jpg (157.71 KiB) Viewed 565 times
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Re: Splitting a plot (house from garden&garage) ROW implicat

Postby pilman » Sun Jun 25, 2017 10:56 am

When his Title says Plot 1 and you look at either block diagram there is nothing to suggest it also includes the garage and garden and why would it when the ROW was to get from the house to the garage.
The Land Registry title plan for Plot 1 will show the full extent of the land included in that title.
If you have posted a copy of that title plan then it would appear that there is a house and garden area to the right of the road and a separate area to the left of the green area which presumably is the part occupied by a garage building and further garden area.

Your quote above definitely seems to indicate that you have not grasped which land has the benefit of the right of way and the parking easement.

If a car is parked in the garage, or a person is standing on the garden behind the garage then the right of way exists to allow that car or that person to pass and repass over the green coloured area under the terms expressed in the deed. That would allow access to the road which is coloured red which is probably part of plot 1 along with the house and garden to the right side of that red coloured road.

Your own title plan shows that you own about 2/3rds of the width of the road beyond the first section, which presumably has rights of way over it for all the properties in the close.
Your title plan also shows where there are two separate areas for parking, with one area directly in front of the garage belonging to No.1 and the other parallel to the road.

My analysis of the situation regarding your property would be that the developer allowed you access to drive into the garage and then made it possible for a car to reverse out of the garage and swing into the space between the two allocated parking areas, even if the neighbours were taking advantage of that part of your land for their sole use. You could then drive towards the private road in a forward direction. You can also park a car in that small area between the parking spaces, as long as your parked car did not prevent a car from driving to the garage of No.1 or its parking space shown in front of that garage.

In the event that the local planning authority approved the redevelopment of the garage and garden owned as part of the Plot for No.1, there is absolutely no doubt that this land has a right of way over the green area, as well as having the right to park on the two identified areas belonging to you.

If I had seen the property at No.1 offered for sale when I was looking to acquire land that had potential for further development that had not been reflected in its asking price, I would have been very keen to buy that property once I had read the additional rights you have quoted form the Property Registry.
It naturally divides into two separate plots, so once that property came into my ownership it would be relatively simple to re-sell the house and garden plot on the right side of the road that would include one parking space on that green land you own to be used by the original house.
I would then be trying to obtain planning permission to develop the land on the left side of the road by designing a house on that plot that would be slightly bigger than the existing garage because that part of the proposed plot is a lot wider than that garage is.

When you first bought your property all of the facts regarding other peoples rights over the property should have been carefully explained to you, because the burden will not go away even if the new owner of No.1 is successful in separating the two halves of that property to create two houses where there was previously only one.

What you may want to consider is doing a deal with the owner of Plot 1, whereby he gives up the right of way and parking over the green land immediately in front of your garage leading up to the private road.
In return you transfer the land below that area to him, so that he can create a separate access from the private road he owns to the new plot he will have on the left side of that road.
It would also require the owner of No. 1 to negotiate with No.2 to provide a new parking area for no. 2 on the land that No. 1 would then own, so that your land in front of the garage no longer had a right of way or parking over it. You could also include a clause in the transfer of your bottom land that any proposed house on the "new plot" would be located a metre away from the boundary of your garage following demolition of the existing garage on No.1's land.

If you could finish up with a slightly smaller plot that you have exclusive use of, that would seem to be preferable to the situation you will find yourself in should a new house be developed on the land adjacent to your garage and rear garden with full and free access taken over your land that will definitely be permanently burdened with both those existing easements.
1. A right of way
2. A right to park
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Re: Splitting a plot (house from garden&garage) ROW implicat

Postby Stikko » Mon Jun 26, 2017 7:41 pm

Thanks for that comprehensive answer.
Interestingly Plot 2 didn't have any reference to the parking and once discovered when the house was sold they stopped parking on our drive. Their space was the one nearest the private road. So I assume that now entirely belongs to me.

My questions:
1. I understand a Deed of termination needs to be signed to remove a ROW from the house yet I have not been contacted. If this doesnt take place then the owner reduces the value of his building plot as the access and parking is shared 3 ways rather than 2 ? Planning permission for a 3 bed house is likely to want 2 dedicated spaces and if shared with Plot 1(the old house) he doesnt have that.

2. Which Deed/Title takes precedence when they differ on the parking for example ? As you can see my diagram shows hatched areas for Plot 1 and 2 (with 2 not having been transferred). So does mine take precedence as access is transfered from mine ?

My current thinking is to 'fight' any planning permission in a professional way and either way make a fair offer for the land as either garden or as a building plot. Thanks again.
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Re: Splitting a plot (house from garden&garage) ROW implicat

Postby pilman » Mon Jun 26, 2017 10:25 pm

Plot 2 didn't have any reference to the parking and once discovered when the house was sold they stopped parking on our drive. Their space was the one nearest the private road. So I assume that now entirely belongs to me.

Your highlighted comment seem to show that you do not fully comprehend what a legal burden over your land is.
You have always owned the land in its entirety, although you cannot prevent parking on it.

Even if No.2 does not know that there is a right to park, if that owner ever investigates the matter , then all that is needed is to buy a copy of your register of title and its title plan to discover that the burden exists, which is a benefit for No.2.Once that happens you will be unable to prevent parking on either of the three spaces shown on the plan.

Your questions don't make sense because you fail to grasp that a legal easement is a burden despite the sale of No. 2 not mentioning any such benefit.
1. As you say there needed to be a deed of extinguishment signed by all parties, including the mortgagee of No. 2. Why an owner or a mortgagee will agree to that is also something to be considered, because a right to park and a right of way adds value to a property. You refer to parking shared 3 ways, but you cannot obstruct a parking space that was granted as an easement without running the risk of being sued for a substantial obstruction by either No. 1 or No.2 if they find your car in a space granted to them. You would have to move a car of one of them wanted to use that particular space if it was one of those shown on the plan.
2. Your property has the burden, theirs has the benefit, so their granted rights come before your rights as owner. You knew about those burdens when you bought the property.
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Re: Splitting a plot (house from garden&garage) ROW implicat

Postby mr sheen » Tue Jun 27, 2017 7:54 am

All the relevant neighbouring land benefits from the rights granted as stated in the deeds and your land has the burden of those rights.

These rights were 'paid for' at some point in the full knowledge that the 'payment' compensated for the decrease in value of your property and increase in value of the neighbouring property. This is often done when land is divided but can be done by grant of rights and payment or barter at the time of grant. All subsequent sales take the rights and burdens into consideration in relation to the purchase price.

You have no case. The rights are clear. There has been no legal change to the rights and no-one is likely to relinquish rights and devalue their property. Fact - The insurance company are not defending this.........the reason may be that there is currently no dispute or .......that you have no case.
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