Right of Way - Terraced house

Right of Way - Terraced house

Postby TEW32 » Tue Sep 05, 2017 4:54 pm

1,2,3,4,5,6 terrace houses in the street
I am in the process of buying an end terrace house (No 1). The title deeds state that none of my neighbours have the ROW across my garden. The two neighbours (2 & 3) next to me have title deeds which state that they have to cross along the back of gardens 2-6. Our garden is the largest of all the gardens and has a large side garden. I am guessing this is the reason why no one has been given access to cross through. I have checked the deeds for number 6 and it states that numbers 3 – 6 have the right to cross through the back of their garden. No mention of number 2. I know that in previous times number 2 has used the garden of number 1 as access however this was permitted and not a ROW.
So my question – if I put a fence up and block number 2 which my title deeds state I am within my right to do so what will happen. The situation is that number 2 has title deeds which state they must cross through gardens 2-6 whilst number 6 has a title deed which states they must allow numbers 3 – 5 to cross their garden.
There was a ROW in the 1960’s which was granted to number 2 however it was for the owners, their children and any grand children still living at home. My solicitor has advised that since none of this family live in the house any more then this ROW has lapsed.
Any Help or advice welcome.
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Re: Right of Way - Terraced house

Postby ukmicky » Tue Sep 05, 2017 10:29 pm

Easements cant lapse but a license can.

An easement that lies in gross (benefits the person)is not allowed under uk law but it would depend on the wording whether it is such an easement
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Right of Way - Terraced house

Postby mr sheen » Tue Sep 05, 2017 10:46 pm

The age of the terraces is also relevant since older terraces may have developed prescriptive easements in addition to those stated in the deeds and if so some properties may have easements that aren't on the deeds.

Property benefits from rights over other property, not people, so either the people were granted license to do something in which case you may be ok. Otherwise if it is an easement then I would get a second opinion on its legitimacy since it may still exist.

If you fence it off then a number of things may happen....
No one will bother
Someone may remove the obstruction claiming a right of way
Someone may claim a right of way and create neighbourhood strife or even war
Or all sorts of other hassle for you

Proceed with the purchase in full knowledge of what you may be faced with because the new kid on the block seeking to make drastic change to years of existing goodwill and/or rights may find some objection to their ideas.
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Re: Right of Way - Terraced house

Postby TEW32 » Wed Sep 06, 2017 3:53 am

I thought this might be the case and honestly I don't want to cause trouble. We have considered creating a path at the back of our garden so they have their own access. Will this rely on our neighbours accepting it or can we insist they use it. This I believe will leave us free to have a private child/pet safe garden whilst they get a proper access to their garden. The worry for me just now is the young girl (age 15) brings all her friends through the garden at all hours at the weekend. Seems the house is party Central after hours whilst her gran is in bed.
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Re: Right of Way - Terraced house

Postby mr sheen » Wed Sep 06, 2017 8:45 am

If there is a right of way across your land, this can be used 24/7 by any visitors or invitees to the property benefitting from the right of way. You cannot dictate who uses the right of way since, if it exists, it is a property right that they own.

You can fence off the garden leaving the right of way available, ensuring that the position conforms to what they understand as the position
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Re: Right of Way - Terraced house

Postby stufe35 » Wed Sep 06, 2017 10:42 am

Please understand the house you are planning on buying does not have a "child/pet safe garden" people have the right to pass through it at anytime. You cannot control who uses it or when..that is up to the people who own the house(s) have right of way. You cannot force them to shut gates and you cannot make them responsible for your dog (for example) by having to prevent its escape as they pass through.Mr Sheen has laid out some of the harsh realities of having a right of way through your property.

You may be able to divert the path to the bottom of the garden if you can get every house that has a right of way across you to accept that. Bear in mind they might (almost certainly will ) want a financial contribution to permit this (and you are in no bargaining position) and you would be obliged to pick up all parties solicitors fees. They don't have to accept it at all.

By the time you've arranged and paid for all that - if in deed the layout allows it and all parties agree to it-- you might as well pay a bit more and find a house without a right of way.

Are you sure this house meets your needs --- it may not be too late to pull out.
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Re: Right of Way - Terraced house

Postby stufe35 » Wed Sep 06, 2017 12:03 pm

Sorry I have just read your post again. The above post ive written applies if you have a right of way across your property.---I can see that wether there is a right is still in question.

Your solicitor has advised it has lapsed....

If I were you I would seek a second opinion on that...can I suggest posting the exact wording on here and let some of our very learned contributors pass comment.

The second worry is that; lets say it lapsed 25 years ago because all the relevant people had moved on/out...but you are saying its still being used today. In which case its possible a prescripitive right may have come into being. In which case your neighbours could potentially successfully contest any fence you put up and claim a right of way. To determine the risk of this you need to know the time line of when the people moved on. Again there are better people than me to comment on this that contribute to this forum regularly.
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Re: Right of Way - Terraced house

Postby TEW32 » Wed Sep 06, 2017 1:36 pm

Thanks Stufe35. My lawyer insists that no one has a legal ROW. I have noted below what the title deeds say with respect to the named people only having a ROW.

A heritable and irredeemable servitude right of way to the said Mrs X, her husband the said Mr X or any child or grandchild of theirs, so long as any of them continue to own and occupy the said subjects know as 56 xxxxx Rd aforesaid along the southwest side and the rest of the said dwelling house number 54 xxxxx Rd aforesaid which servitude is hereby declared to be real lien and burden upon ...... this is where the actual document is really hard to read. There is also talk of payments being made. Not sure if this is for the ROW or for something else.

Would you mind if i sent you a copy of the document?

Many thanks
TEW32
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Re: Right of Way - Terraced house

Postby stufe35 » Wed Sep 06, 2017 1:51 pm

TEW,
Im not an expert so no point me looking at it Im afraid. Others on this forum do have legal training and im sure will comment in due course. Reading what you've put however would seem to confirm the right of way was only for Mrs X Mr X and their family.

So lets assume that is the case and legal right of way mentioned in your deeds lapsed when they moved out.

The potential problem I believe you may have is that you tell us the route is still being used by the current owners. The use should have ideally been stopped the day Mr and Mrs X moved out. If the route has been used for a period of longer than 20 years since Mr and Mrs X moved out it is possible for what is called 'prescriptive rights" to come in to being. Ie a right of way can be claimed based on in excess of 20 years unchallenged use. So if Mr and Mrs X moved on prioir to 1997 or there abouts you may risk this scenario.

What are the time lines ? Ask your solicitor if he has considered this scenario.
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Re: Right of Way - Terraced house

Postby TEW32 » Wed Sep 06, 2017 2:00 pm

Thanks Stufe35.
The house sold in 2002 and then again in 2013 so if it has been used for more than 20 years it will not have been by the same family. Would the onus then be on them to prove that the ROW had been used unchallenged. Also what if the previous owner allowed the usage. So the neighbour's had permitted usage. Does that make a difference.

I should have mentioned that there is supposed to be a path which runs along the back of properties 2-6. This is also why I think property 1 has never had the ROW written into its deeds. I am not sure if the path still exists. From my new garden it is hard to see as there is a burn that runs a long the backs.
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Re: Right of Way - Terraced house

Postby stufe35 » Wed Sep 06, 2017 2:11 pm

I believe the key date you need to identify will be when Mr and Mrs X sold (or if they bequeathed it to there children or grandchildren possibly when they sold it- just to complicate matters further). Change of owner and user of path wont matter- in fact more people/families acting as witnesses saying they used it without issue will strengthen the case.

I think burden of proof will be on the current owners to prove continuous use without permission. It seems to me that is almost certainly the case here though ?
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Re: Right of Way - Terraced house

Postby jonahinoz » Wed Sep 06, 2017 4:12 pm

I believe the key date you need to identify will be when Mr and Mrs X sold (or if they bequeathed it to there children or grandchildren possibly when they sold it- just to complicate matters further).

Hi,

I have limited knowledge, but agree with Stufe. If anybody not mentioned on the deeds can make a Court believe that they (or their predecessor) have crossed your garden on one day of every one of the last 20 years, then they will have a prescriptive easement.

I think you are saying that only No.2 has/had the right, and is still acting as though they have the right, to cross your garden.

Where does the route across your garden lead to? A path down the side of your house, and then the road in frond of your house? Or does it lead to a road running alongside your garden?

It would be in your neighbour's interests to not have to use a RoW as their rear access. Having to use such a RoW devalues their property.

Instead of offering to buy them out of their rights, try offering to trade them a strip at the top of your garden, in return for extinguishing their rights. If adding a couple of metres to the width of the strip, so that there could be vehicle access to their garden, and street parking is tight, they would be silly to refuse.

John W
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Re: Right of Way - Terraced house

Postby TEW32 » Wed Sep 06, 2017 5:02 pm

Thanks Jonahinoz
This is a property we will get the keys for on Friday 15th September so not quite in the property yet. I have passed the property a couple of times and witnessed the family cutting through the garden.

The path they currently use is along past a bedroom and kitchen window, then past a 4m grass area to our drive. Down the drive and then onto the main road. The area at the back of the house is not as big as the area to the side of the house. they actually have a larger back garden as a result of a burn which does not run straight. We would consider offering them a path which would go along the back of our garden and drive and down the side. there is no room to offer them space to park a car. Our drive can hold two cars. This would be a path to their home without having to enter our garden. I believe this would be a benefit to them as it cant be nice having to cut through someone else's garden to access your own.
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Re: Right of Way - Terraced house

Postby MacadamB53 » Wed Sep 06, 2017 6:00 pm

Hi TEW32,

My lawyer insists that no one has a legal ROW

either you've misunderstood or your lawyer hasn't been clear enough because they are only in a position to confirm that the documents they've checked do not contain any record of the property being burdened by a ROW and, if they've bothered to investigate the full recorded history of the property (not typically part of a sols service for housebuying) that the history of the property does not contain any details to suggest the property is burdened by an unrecorded ROW.

kind regards, Mac
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Re: Right of Way - Terraced house

Postby mr sheen » Wed Sep 06, 2017 6:39 pm

Even though it often appears that alternatives may benefit the neighbours, they have no compulsion to accept your proposed alternatives or changes.

Your understanding of a right of way is a bit confused. It is no problem for them going through someone else's garden since this is their right of way and even though they don't own the land, they own a right over the land so they are not passing through your land, they are utilising land over which both properties have rights. Quite rightly people should not feel awkward using such rights, some where along the way, someone who owns their property paid for that right and the values of both properties were adjusted accordingly.

As Mac points out, your solicitor cannot claim there are NO rights over your land. He can merely point out what the deeds say. Rights of way associated with terraces are historic and date back to a time when people helped out their neighbours and coal was brought across all the gardens etc etc.
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