ROW over my drive to service new build

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Neil M
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ROW over my drive to service new build

Post by Neil M » Thu Jan 19, 2012 7:22 pm

I own a shared drive which my neighbour enjoys right of access to by car and vehicle and also allows visitors to it. She has been granted planning permision for a four bed house in her garden. She is claiming a legal right over my driveway to access the new dwelling. I own all the boundries on this odd shaped plot. As far as i can make out she has no legal right of way. Am i correct in thinking this? I have told her the only way in and out for the new build is by helicopter!!

span
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Re: ROW over my drive to service new build

Post by span » Thu Jan 19, 2012 9:00 pm

You may well be wrong.

The devil will be lurking in the detail. Post up the wording of the right-of-way that she has.

mr sheen
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Re: ROW over my drive to service new build

Post by mr sheen » Thu Jan 19, 2012 9:18 pm

A ROW serves land not people or specific properties (unless specified otherwise in the deeds), so the whole piece of land owned by your neighbour is likely to have a ROW to it. Therefore the land the new house is being built on, and hence the new house, is likely to have a ROW to it.

pilman
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Re: ROW over my drive to service new build

Post by pilman » Fri Jan 20, 2012 12:24 pm

It is a fact that wording used when a right of way was granted needs to be carefully considered.

If it stated it was a right of way for the single dwelling house located on the land, that would support your theory about needing a helicopter.

If it stated a right of way at all times and for all purposes, then an unlimited number of houses will have the benefit if they are located anywhere on the original plot granted the right of way.

You need to let everyone see the original wording used, for more accurate advice to be offered.

Alicia
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Re: ROW over my drive to service new build

Post by Alicia » Fri Jan 20, 2012 2:39 pm

This is suddenly relevant to me!
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Neil M
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Re: ROW over my drive to service new build

Post by Neil M » Sun Jan 22, 2012 6:48 pm

I should have added that she purchased an extra land from the farmer. Access was to the original plot which of land. I have no problem with her using this as garden.
My deeds state "subject to the persons enjoying the like right each paying an equal share of the cost of cleansing maintaining and repairing the parts of the driveway shown couloured yellow on the attached plan over which they enjoy the like right a right of way with or without vehicles over along so much of the said driveway as does not form part of the land transferred in common with the owners for the time being of the adjoining property plot 31 at all times and for all proper purposes connected with the land hereby transferred" I beleive there was a clause possibly a section 21?? granted on the "farmland/garden.

FrTed
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Re: ROW over my drive to service new build

Post by FrTed » Mon Jan 23, 2012 2:51 pm

Neil M wrote:I should have added that she purchased an extra land from the farmer. Access was to the original plot which of land. I have no problem with her using this as garden.
That might change things - the land they want to develop, is it or is it not part of the original plot of land your neighbours house and garden is on, or does it have a separate title ?
"No Dougal, these cows are SMALL, those cows are FAR AWAY"

Neil M
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Re: ROW over my drive to service new build

Post by Neil M » Mon Jan 23, 2012 3:17 pm

It is not part of the original plot of land but was purchased some years later.

FrTed
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Re: ROW over my drive to service new build

Post by FrTed » Mon Jan 23, 2012 3:35 pm

In which case its possible the ROW does not service this piece of land. You do need to seek confirmation of this in case it had made allowances for when they bought the additional plot. It might be that the plot was incorporated under one LR title and now forms the whole of your neighbours plot of land (house, garden and all)

Might be time to speak to a solicitor about it as you could go one of two ways with this, block the development (but this is likely to drag on and on with legal costs if they decide to fight you, which given the potential profit involved is likely) or sell them a right of way over the drive for the new build.
"No Dougal, these cows are SMALL, those cows are FAR AWAY"

ukmicky
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Re: ROW over my drive to service new build

Post by ukmicky » Wed Jan 25, 2012 10:09 pm

Neil M wrote:It is not part of the original plot of land but was purchased some years later.

If she wishes to build the houses on the land and it did not have an easement allowing access to it before she acquired it then unless a prescriptive right has somehow been gained then she cant use the ROW for access to build the new houses. Her having an easement for land A will not allow access to land B in most situations.
However you need to be sure that it has not in the past somehow gain a right of access. How was it accessed before she bought the land


As i said though in most situations she couldnt use the ROW to access the land ,however If she wanted to use the land for something that directly benefits her original land that has the easement ,for instance as an extended garden then she may have a right to use the ROW to access the land.
Any information provided is not legal advice and you are advised to gain a professional opinion

Conveyancer
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Re: ROW over my drive to service new build

Post by Conveyancer » Thu Jan 26, 2012 11:06 am

Image

John owns A and has a right of way over B. The right attaches to the whole of A.

If John acquires C and immediately before the purchase C had no right of way over B, then the right of way is not available for C. This does not mean though that once on A John cannot go onto C so long as B is not effectively being used as a means to get to C.

Examples will illustrate the principle:

If John uses C as no more than an extension to his garden he has no problem.

However, if he puts a garage on C then he has no right to drive his car over B.

Not all cases are going to be that clear cut, but we can say with certainty that if John erects a house on C and sells it to Fred that Fred will have no right of way over B.

The position will, as ukmicky suggests, be different if a prescriptive right is acquired.
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