deed of variation

barbara h
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deed of variation

Post by barbara h »

Hi

I'm new to this so hopefully I'm posting in the right place! And I do hope someone can help - I've googled it to death!!

On behalf of my daughter - their neighbours have a right of way to cross their garden on foot, and do use this to take the bins out - no problems.

My daughter and hubby have applied for planning permission to extend. The extension would cross the ROW. They want to change the route but not the original entrance and exit to the ROW - itjust means instead of a straight path in front of their kitchen window the neighbours will have a 7 metre diversion a round the extended kitchen. Their gate will remain in the same place and not be touched and it wont interfere with their garden.

Does this need a deed of variation?

I'm sure they wont agree as they have been objecting all the way for the planning application. I think they will use this as their ace card, so to speak.
Conveyancer
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Re: deed of variation

Post by Conveyancer »

Yes a deed of variation is required. You cannot alter the route of a right of way without the consent of the persons entitled to use the route.
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span
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Re: deed of variation

Post by span »

As ace cards go, it's a top trump!
barbara h
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Re: deed of variation

Post by barbara h »

Thank you. I guessed it would be but just wanted to check if the neighbours approval was needed if nothing was being changed on their side, including the access gate.

I need to find a way around this. With their stance so far on the extension application I can't see them agreeing. My daughter is in a very old cottage with 2 very small bedrooms. They have 2 children and she has a stepson who stays at weekends. They just don't fit in! They have tried to sell and all feedback is about the small bedrooms. The only answer is to extend. She has been verbally told it should be passed.

My only potential leverage is - on my daughters plans it does show the route of the ROW, but this shows it to start on the neighbours property. That part has been built on by them, so effectively they have already wiped it out on their side. Could d and sil do anything to force there hand with that? There was, as far as we can see, no deed of variation for it.

Thank you being kind enough to advise so far.
barbara h
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Re: deed of variation

Post by barbara h »

By the way, although it is not relevant, the extension is only a mirror of what they have done to theirs.

Surely there is someone who can make a decision if they are at stalemate?
kipper
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Re: deed of variation

Post by kipper »

barbara h wrote:My only potential leverage is - on my daughters plans it does show the route of the ROW, but this shows it to start on the neighbours property. That part has been built on by them, so effectively they have already wiped it out on their side. Could d and sil do anything to force there hand with that? There was, as far as we can see, no deed of variation for it.
How long has the neighbour's extension been built and they have been accessing your daughter's garden from a different point than that stated on the title plan?
span
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Re: deed of variation

Post by span »

This is getting more interesting. As ever, the devil may well be lurking in the detail. Tell us more. What's on your (daughter's) deeds - wording and diagrams. Same for neighbours. What's the history of the right of way?
stufe35
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Re: deed of variation

Post by stufe35 »

Yes the ace card may well have just changed hands....post diagram and how long has the neighbours extension been in place ? Wording in deeds really needed too. Need to see actual layout with boundaries, position of neighbours extension, route of original ROW and route used now.
Conveyancer
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Re: deed of variation

Post by Conveyancer »

We obviously need some clarification. Are you saying (a) the end point of the route of the right of way on the boundary has been cut off (b) that your daughter has a right of way over the neighbour's property the route of which has been changed by the construction of an extension (c) both. When was the extension built?
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barbara h
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Re: deed of variation

Post by barbara h »

Wow, thank you all.

The neighbours extension was built in 1991 .

my now son in law acquired the house in 1995 - bequeathed to him in a will, although he was only15 when that happened in 1995)

The copy of the deeds I have are when the lady who left him the house bought it. These are dated 1986. They show next door (dominant property?) pre extension. The route starts at the then boundary wall of their house to the gate, which it appears has always been in the same place. It then goes over d and sil's garden and down their path to their gate. They don't have a drive for a car, it is only 0.8 meters wide all the length of the house.

Although there would be no need for my d and sil to have cause to go through the gate onto next door, it is my straw to clutch at I guess.

In these deeds - which are from the solicitor - it states

"The occupiers For the time being of the adjoining property number 13 *********** aforesaid a right of way at all times and for all purposes (as now used and enjoyed) over the yard and garden lying at the rear and the side of the property hereby transferred shown on the plan hereto annexed by a green Linear A means of access to and egress from the rear of the said adjoining property from and to (road name) aforesaid and of user (in common with the owner and occupier for the time being of the property hereby transferred)of the drains shown on the said planby a red line and any other pipes and cables lying therein or there under and serving the said adjoining property.

It goes on to say about the separating wall being always known as a party wall and about rainwater, drains and cables being jointly maintained and about no right to light or air! If I need to I can type that up.

The solicitors copied this for my daughter after a phone call explaining the issue they are facing in being able to extend. The only thing that bothers me is that the wording appears to start on a previous page, although that may not be relevant. I can get a copy of that page if I need to.

The house does indeed have the mentioned green and red lines, although on the title deeds for my d and sil it is only coloured on their house, not of the one adjoining. I have ordered a copy of the title deeds of their neighbour from the land registry.

It used to be one big house, but was converted into 2 in 1986, which is when this deed is dated.

I hope this makes some sense, and I really do appreciate your help.
kipper
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Re: deed of variation

Post by kipper »

The neighbour's RoW over your d's garden (as coloured on her plan) has a start point on the boundary where it is accessed from the neighbour's land. Has this start point been blocked by the neighbour's extension, meaning they now come into your d's garden from another point on the boundary?
barbara h
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Re: deed of variation

Post by barbara h »

kipper wrote:The neighbour's RoW over your d's garden (as coloured on her plan) has a start point on the boundary where it is accessed from the neighbour's land. Has this start point been blocked by the neighbour's extension, meaning they now come into your d's garden from another point on the boundary?
No the end of the green line is where the gate is but the "key" on the plan shows a continuous line with arrows through denotes the ROW. Strangely the marking continues from her gate to her back door on her side, although it isn't marked in green on my daughters plan, although that said it is only her house that has any boundaries coloured.

I did think it strange the ROW being marked on the neighbours garden too as there would be no need, and in fact the arrows do only go in one direction on that bit.

My hope is that as they have already built over the marked ROW there would be some leverage in getting them to agree a change of the route on my d and sil's garden to enable the extension to go ahead.

Land registry have confirmed there has been no deed of variation at all for either property.

Thank you
barbara h
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Re: deed of variation

Post by barbara h »

Sorry, I should have said, the gate has always been where it is now. It is just the bit marked beyond it on the neighbours that has me wondering if a DOV should have been done.
kipper
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Re: deed of variation

Post by kipper »

no, it seems the colouring on their land is superfluous and has no legal bearing, i was hoping the extension may have blocked the original route onto your land but it appears not. I guess there are 3 things your d & sil can do apart from move (which seems easier said than done):
1. Offer money to the neighbour to re-route the RoW and pay costs to alter both sets of deeds.
2. If it is only bedroom space that is the issue build an extension to the upper floor only, similar to a carport extension. (Possibly not very attractive)
3. Use the threat of 2. to leverage 1. (i.e. an extension build will go ahead - they can either make some money out of it or not).
barbara h
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Re: deed of variation

Post by barbara h »

kipper wrote:no, it seems the colouring on their land is superfluous and has no legal bearing, i was hoping the extension may have blocked the original route onto your land but it appears not. I guess there are 3 things your d & sil can do apart from move (which seems easier said than done):
1. Offer money to the neighbour to re-route the RoW and pay costs to alter both sets of deeds.
2. If it is only bedroom space that is the issue build an extension to the upper floor only, similar to a carport extension. (Possibly not very attractive)
3. Use the threat of 2. to leverage 1. (i.e. an extension build will go ahead - they can either make some money out of it or not).
Hmm thank you, I was hopeful we had an option there. they had the proposal to just add to the first floor refused. It is a conservation area and the planners are very selective on what they will allow.

The first option may work - isn't it crazy that neighbours who use your land can have such an impact? :( I think this is something that planning officers should be able to decide on - if they are happy to allow a building to be erected it seems ludicrous not to enforce a change if route of a ROW!

Just as a point of interest - if they built according to the planning consent could the neighbours force a demolition of it?
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