Right of way by prescription

devilsbackbone
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Right of way by prescription

Post by devilsbackbone » Fri Jan 26, 2018 11:53 am

Hoping for initial guidance before i do anything including seek professional advice from a solicitor as it's so expensive. I don't want to be wasting my time and money unnecessarily.

I’ve lived where I am for 8yrs, on moving in I was told I had a ROW over my neighbours garden and the conveyancing solicitor at the time explained it all to me. I was given a ROW over the rear garden of my neighbours house into a roadway on the opposite side in exchange for drains across my rear garden into drains in the road on the opposite side of my house. The two houses are a pair of semi detached houses between two roads either side, not back and front.

At the time of moving in my neighbour, there family, friends etc were also using this ROW too, I questioned this and was told by the neighbour that they have always used it and will carry on as they too have a ROW over my garden. At the time I accepted this, foolish probably but I had so much to do at the time.

In the last 6 months it has become intolerable as the dear old lady next door is essentially dying bless her. The visitors, family etc carers and more parading back and fourth etc.

So I have downloaded and had a look at the neighbours title where there is no expressed ROW but she has lived there for more than 30yrs. I’m assuming that they are claiming a ROW by prescription I think.

So my questions are: What happens when eventually she passes away?
Can a new neighbour claim a ROW?
How can if at all can I prevent a new neighbour from doing so?
Can the old ladies family do something to ensure the new buyer gets a ROW on purchase?

Is there anything i can do either now or after she passes away and before or after i get a new neighbour?

span
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Re: Right of way by prescription

Post by span » Fri Jan 26, 2018 11:57 am

The right of way already exists. Accept it, or move on.

MacadamB53
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Re: Right of way by prescription

Post by MacadamB53 » Fri Jan 26, 2018 12:34 pm

span wrote:The right of way already exists. Accept it, or move on.
+1

Volumiza
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Re: Right of way by prescription

Post by Volumiza » Fri Jan 26, 2018 2:06 pm

span wrote:The right of way already exists. Accept it, or move on.
Does it? All I read is that the OP has a right of way granted across his neighbours property in exchange for drains access across his property. If no rights burdening the OP's property are noted in either set of title deeds / registers then surely the onus is on the neighbours to prove strictly a right of way has been acquired? Rights of way have to be proved, not just inferred.

Some similarities between this and my own dispute. We questioned it, they couldn't prove it in the end , I now have a private garden. The caveat is that your neighbours will hate you.

Vol

MacadamB53
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Re: Right of way by prescription

Post by MacadamB53 » Fri Jan 26, 2018 2:27 pm

Hi Vol,

I’ve read back through the OP and find no reference to the neighbour using any of the OP’s land, just this:

At the time of moving in my neighbour, there family, friends etc were also using this ROW too

the ROW in question is part of the neighbour’s land, not the OP’s land.

therefore, my understanding is that the OP does not like the neighbour and their visitors using the path that the OP uses across the neighbour’s land - maybe it has been sectioned off from the rest of the neighbour’s land and the OP mistakenly thinks having a ROW gives them exclusive use...

kind regards, Mac

Volumiza
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Re: Right of way by prescription

Post by Volumiza » Fri Jan 26, 2018 2:36 pm

devilsbackbone wrote: I questioned this and was told by the neighbour that they have always used it and will carry on as they too have a ROW over my garden.
Ok, maybe I've misunderstood the context of 'my garden' in this bit. In which case, if it isn't over the OP's garden, why bother about it?

Vol

jonahinoz
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Re: Right of way by prescription

Post by jonahinoz » Fri Jan 26, 2018 4:38 pm

Hi,

My understanding is that the neighbours are claiming a Prescriptive Easement across the OP's garden. That prescriptive easement will benefit the neighbour's house, and the neighbours for as long as they live there. When they move out, they will lose the right to use the easement, but the new neighbours will acquire the easement.

Do all the friends and relatives use this easement to visit the neighbour? Or do they use it as a short cut to get somewhere else, which would not benefit the neighbour's house.

You say the old lady is dying. Is she the owner of the house? It sounds like she has a lot of relatives ... will the house be sold so that her estate can be shared amongst them all? In my experience, relatives want their shares ASAP. They might be inclined to forgo their prescriptive rights, in return for you not raising a dispute.

As the drain/ROW agreement appears not to have been registered, do your neighbours have the right to dig into your garden to carry out repairs on their drains?

John W

devilsbackbone
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Re: Right of way by prescription

Post by devilsbackbone » Mon Jan 29, 2018 1:26 pm

Ooops my fault for not being too clear. sorry readers

My neighbour has / is also walking over our garden to the opposite roadway / roadway alongside our house. There is a deed of grant within our title expressly giving us a ROW over our neighbours garden in return for drains, it also says they have a right to upkeep and maintain the same only. The deed of grant does not say they have a ROW as a pedestrian footpath it just says they have a right to upkeep and maintain the drains.

I think what has probably happened is that initially nobody had a ROW over the others garden. Then in 1962 our neighbour needed new drains and it was probably both shorter and cheaper to go across our garden the roadway by our side. In return our house was given a ROW over there garden to the roadway on their side. I suspect that the previous owner of our house allowed our neighbour to walk over our garden too being neighbourly etc etc. It has or it would appear that our neighbour has taken it for granted that they now have a ROW over our garden. As far as i can tell they don't, or only by prescription having used it for more than 20yrs.

Our neighbour (Old Lady) who we have always got on with very well is now in a local hospice with days to live. I mean no harm or malice etc etc but if possible i'd like to have things set straight / put right sort of thing. I would like our new neighbour not to have a ROW over our garden if possible. They have more than ample parking etc on their side.

The roadway on our side is tarmaced and wide and a public highway with footpath and parking. Our neighbours roadway is a private gravelled roadway shared with a local farm along which there is a public footpath. Our neighbour has ample parking on their side. But visitors etc choose to park on our side and walk through our gardens back and fourth because it's cleaner and more convenient than driving a short distance round to the opposite side. In winter our neighbours roadway can get a tad mucky caused by large farmyard vehicles commuting back and fourth.

Because our neighbour has now gone into a local hospice with only days left all's now very quiet and i'd like it to stay this way, but how and when to go about it.

Can our neighbours children claim a prescriptive ROW after the death of the owner therfore sell the house with a ROW over our garden?

MacadamB53
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Re: Right of way by prescription

Post by MacadamB53 » Mon Jan 29, 2018 2:30 pm

Hi devilsbackbone,

thanks for clarifying :)

Can our neighbours children claim a prescriptive ROW after the death of the owner...

yes they can

... therfore sell the house with a ROW over our garden?

they can either sell it with no mention of a RoW, mention of a claimed RoW, or with a RoW showing on the register after having their claim submitted to HMLR and it being successful.

in your shoes, and given the circumstances, I’d carefully mention to an appropriate member of her family that the family and guests have my permission to use of my garden for the time being when convenient - but in due course I will need to see the evidence of regular and consistent use “as of right” that has been going on for the past +20 years - as this is the minimum they’ll need in order to sell the property with the claimed RoW documented on HMLR.

kind regards, Mac

devilsbackbone
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Re: Right of way by prescription

Post by devilsbackbone » Mon Jan 29, 2018 3:01 pm

Thank you to all those that have contributed.
in your shoes, and given the circumstances, I’d carefully mention to an appropriate member of her family that the family and guests have my permission to use of my garden for the time being when convenient - but in due course I will need to see the evidence of regular and consistent use “as of right” that has been going on for the past +20 years - as this is the minimum they’ll need in order to sell the property with the claimed RoW documented on HMLR.
This is something i had considered as an option.
There are 4 children, 2 of which we have never seen or met before. As always in such situations all manner of worms crawl out from the woodwork when a family member is about to pass away as each sibling brings along grand and great grand children and other family members etc all hopeful of what might be going their way. Sad really but that’s how it is. I think we have seen more of our neighbour in the last few weeks than the majority of the visitors have in the last 20yrs or more hey ho.

Your suggestion makes sense and given that if they want to challenge my actions it will delay sale until resolved and of course incur costs too by both parties, this is something I’m happy with to a point.

jonahinoz
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Re: Right of way by prescription

Post by jonahinoz » Mon Jan 29, 2018 4:12 pm

Hi,

There is a dispute. That will delay the sale of their property. Does anyone know how long such a delay can take to resolve?

If there is a prescriptive easement, then it goes with the house, not the occupiers. The new resident will benefit from the easement, until he moves on.

You (or rather your house) has a documented easement over your neighbours property. That might deter potential buyers. It would deter me.

Do you really want/need that easement? How about you both agree to cancel your ROW, in return for them not claimig a ROW over your garden. Forget about their drains. If they break, I'm sure you would want them fixed ASAP.

John W

devilsbackbone
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Re: Right of way by prescription

Post by devilsbackbone » Tue Jan 30, 2018 8:18 am

If there is a prescriptive easement, then it goes with the house, not the occupiers. The new resident will benefit from the easement, until he moves on.
But if the new owner doesn't know that the previous owner was using our garden as a ROW? The old owner just simply may not want to get involved aftwerwards and the new owner is then left trying to prove a ROW without help or documentation from the previous owner. Would this mean that the prescriptive ROW then comes to an end?
Do you really want/need that easement?
No not really, we can happily live without it to be honest and we will give it up if required.

We would much rather have a dispute with the old ladies family before sale than enter into a dispute with a new neighbour who we would hope to get along with well, or at least try anyway.

Amazing isn't it and sad too.......... A family member has already established that there is a will and has already booked an appointment with a local solicitor to find out what it entails!!!!! She hasn't passed away yet!

jonahinoz
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Re: Right of way by prescription

Post by jonahinoz » Tue Jan 30, 2018 8:59 am

Amazing isn't it and sad too.......... A family member has already established that there is a will and has already booked an appointment with a local solicitor to find out what it entails!!!!! She hasn't passed away yet!

Hi,

Yes, sad, but par for the course. Death is a time for black bags and family disputes.

OT ... my divorced son-in-law spent a week with his father, before he died. When it was time for the solicitor to read the will, ex-SIL produced a new will that disinherited his two children and my daughter. Serious money. My daughter refuses to fight it, she has her own sense of morality.

Johnn W

Volumiza
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Re: Right of way by prescription

Post by Volumiza » Thu Feb 01, 2018 2:56 pm

devilsbackbone wrote:
Do you really want/need that easement?
No not really, we can happily live without it to be honest and we will give it up if required.

We would much rather have a dispute with the old ladies family before sale than enter into a dispute with a new neighbour who we would hope to get along with well, or at least try anyway.

Amazing isn't it and sad too.......... A family member has already established that there is a will and has already booked an appointment with a local solicitor to find out what it entails!!!!! She hasn't passed away yet!
The thing is, you have the benefit of a documented easement, they do not so I wouldn't be too hasty in casting away your rights. Harsh as this sounds you currently have a potential opportunity to sort this positively for your property. I would be tempted (after legal advice obviously) to block it off on your side (before swiftly putting on a hard hat and bunkering up :lol: ). If they want to apply for an easement they will then have to go through the process of proving prescriptive use. 20 years, without permission, without force and without secrecy. This is harder than it sounds, especially the 'without permission' part, which would relate to the previous owner of your property.

From what you have said, I imagine a legal dispute would be the last thing they want or need at this moment in time and as you said, much better to get this sorted now than getting off on the wrong foot with a new neighbor.

Vol

devilsbackbone
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Re: Right of way by prescription

Post by devilsbackbone » Thu Feb 15, 2018 12:40 pm

Just thought i would let readers know what has happened.........

Our neighbour passed away 10 days ago now. I have made it clear that i need proof that there property has a ROW through our garden if they insist on continueing to use it. I've padlocked the gate on our side. Nobody as yet has challenged a right to a ROW over our garden and we know that people are visiting the property via there side. We are essentially being snubed and ignored too, no more polite "Good Mornings" and Hello's etc.

This next bit is a big surprise to us..... We've had a letter from a solicitor requesting that we make an appointment to visit re the old ladies Will. Our assumption being we are named within the Will in some way. We did call in on her twice a day'ish just to make sure she was OK and well but we didn't get too involved otherwise, kept our distance. Appointment is next week!

We have decided to attend a service at our local crem on Fri despite the fact that we haven't been formally informed or invited. We did get on fairly well with her.

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