Terraced house ROW query

Morph
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Re: Terraced house ROW query

Post by Morph » Sun Feb 11, 2018 9:38 pm

Sorry can I ask, the strip of land over which the easement exists ie the passageway - who owns this? It it common ROW or “owned “ by the relevant property? The ROW is a standard back of garden on a terraced strip.

Collaborate
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Re: Terraced house ROW query

Post by Collaborate » Mon Feb 12, 2018 7:49 am

Morph wrote:Sorry can I ask, the strip of land over which the easement exists ie the passageway - who owns this? It it common ROW or “owned “ by the relevant property? The ROW is a standard back of garden on a terraced strip.
Title to the passageway is vested in the owner of the garden through which it passes. However those who have the benefit of the ROW also have rights over the land.

arborlad
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Re: Terraced house ROW query

Post by arborlad » Mon Feb 12, 2018 8:38 am

Morph wrote:Sorry can I ask, the strip of land over which the easement exists ie the passageway - who owns this? It it common ROW or “owned “ by the relevant property? The ROW is a standard back of garden on a terraced strip.


I thought ownership had been established, it's usualy owned by the adjoining landowner, if you can post the title plan that might help. In any event, if it's owned by a third party and the neighbours have a documented easement over that land, a claim for AP will fail and your rights over that land remain unaffected.
arborlad

smile...it confuses people

jdfi
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Re: Terraced house ROW query

Post by jdfi » Mon Feb 12, 2018 9:47 am

If I were you, I would either want the accessway opening up fully, or else I would want to be paid by giving up your route.

What do you NOT want is the scenario where the deeds give rear access but on the ground rear access is unavailable - this is when people want money off their purchase of your house, indemnities, etc.

Your access to the bottom of the garden is potentially valuable - do the deeds say it is on foot only, or include wheelbarrow/car?

Do you plan any future extension work to your property whereby you may wish to bring building materials in by this route?

To be fair, informing the neighbours that you are having some garden work done and require to access your back garden via your documented route may well be the best way to get the gates opened up.

I would seriously recommend you get this sorted now, before it affects you at the point you/your heirs wish to sell.

Morph
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Re: Terraced house ROW query

Post by Morph » Tue Mar 06, 2018 11:43 am

Thanks for replies. I contacted all neighbours and asserted my claim over the blocked right of way. All have their own motivations and generally not happy with my assertions.

But can I check one point re estoppel vs difficulty to extinguish a right of way. The main block to the right of way was done by a (bad) neighbour probably 10-15 years ago (before I moved in) . The neighbour who blocked sold this property in last 2 years so I’m dealing with a new neighbour who is not happy with me. With respect to the old neighbour, he only asked one of 4 neighbours whether he could extend. And even this neighbour, who still resides here, rescinded his approval (stating he gave it during a period of sickness), but all these exchanges were verbal. But the old bad neighbour didn’t unblock. Myself and the other good neighbour both wrote around 2013 to state our right of the right of way. No replies and us active neighbours took a different view tactically and nothing got done formally. Roll onto now.

I don’t know if the dispute was represented as part of the sale, but can the new neighbour counter claim using the principle of estoppel ( or you bought what you saw)? And if so, what are the chances that succeeds? I ask as from the responses it seems the right of way is only rarely extinguished and non use over even hundreds of years is generally not a valid reason to lose it. This appears in contradiction to the principle of estoppel in this case. I guess the replies will be this should been sorted out before but I can’t unwind clock.

Thanks

MacadamB53
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Re: Terraced house ROW query

Post by MacadamB53 » Tue Mar 06, 2018 12:20 pm

Hi Morph,

if all locked gates were to be unlocked and all detritus/overgrowth removed, could the way be used?

kind regards, Mac

pilman
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Re: Terraced house ROW query

Post by pilman » Tue Mar 06, 2018 12:38 pm

It would be unlikely that a claim to continue blocking of the right of way will succeed based on estoppel, because a previous owner of your land did not object to the obstruction at the time when the fences or gates were erected to block passage.

The current owner who is now substantially obstructing the right of way has been contacted with a request to remove the obstruction of a legally granted right of way. That is a property right owned by the people who own the dominant land granted such a right of way.

If an application to have the obstruction removed and an injunction granted that the right of way should remain open thereafter, was to be made to the court, the costs involved to remove a fence or gate is not very substantial, so it would not really be an unreasonable order for the court to make in order to protect a legitimate property right.

As pointed out earlier having a way to access a back garden without going through the house is a valuable asset when trying to deliver or remove garden waste or for delivery of bulky and dirty deliveries.

It is not a right to be given up easily because you have read the word "estoppel" in respect of certain matters brought before a court of equity. The current owner of the property doing the blocking would have to prove that each of the other owners of the dominant land had granted permission for the blocking up to occur, so that the obstructor spent money erecting the fence or gate that caused the obstruction because he knew no one objected to losing a valuable property right.

Testimony from the current owners of the dominant properties will be needed to disprove any claim that they are now estopped from seeking to have the obstruction removed. As long as all the owners will support you it will be difficult for the owner of the land that is causing the obstruction to succeed in any claim that the obstruction should be allowed to remain, because it's been there a long time.

Morph
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Re: Terraced house ROW query

Post by Morph » Tue Mar 06, 2018 2:34 pm

Great thanks. To reply to Mac, there is only one fixed fence where a gate should be ( apart from the locks, rusty gate issues) obstructing and possibly a concrete garden bed about a foot high - both in the one min obstructing garden . 2 neighbours have been here long enough to know the history of the obstruction, and one wasn’t asked at all about the block, and the other did but then recalled it. I need to tread carefully Incase I need a statement of truth etc. What I’m finding is that the other neighbours are trying to avoid getting involved or being passive. One doesn’t see any value in a back access right of way which staggers me, as we are effectively land locked apart from the front of the house.

Will keep all posted

span
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Re: Terraced house ROW query

Post by span » Tue Mar 06, 2018 2:38 pm

Morph wrote: I don’t know if the dispute was represented as part of the sale,
Find out. Ask the new "bad" owner. He may have a case against the old "bad" owner if it wasn't disclosed that you were asserting your ROW. That'd give him another option to explore, possibly an alternative to digging in and fighting you.

MacadamB53
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Re: Terraced house ROW query

Post by MacadamB53 » Tue Mar 06, 2018 3:23 pm

Hi Morph,

you mention that, at present, you have no intention of using the way? and that your main concern is if others also replace gates with fences/walls the job of re-establishing the way would become more of a challenge?

my recommendation would be to clear the way now and deal with the blocker if they don’t see sense.

they can all enjoy a long garden - just install solid gates and don’t obstruct the way.

kind regards, Mac

Morph
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Re: Terraced house ROW query

Post by Morph » Tue Mar 06, 2018 5:01 pm

Hi , if I mentioned I don’t plan to use the ROW, I meant there are no plans to materially use it. But as this discussion has moved on, I realise how much stuff ie logs, fences, garden waste , paint, scaffolding etc has gone through our house to date rather then probably more appropriately thru the alleyway.

Agreed on your recommendation - but funny as one has a dog that doesn’t like people so needs fencing in, and one has kids and they want security. So longer gardens may not work for them but not my problem technically...

Thanks for feedback per usual

Hugh Jaleak
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Re: Terraced house ROW query

Post by Hugh Jaleak » Fri Mar 09, 2018 6:28 pm

Afraid if you purchase a property, burdened with a ROW, it is your responsibility to contain children, pets etc, a loose dog preventing rightful passing along the ROW could count as an interference. People are aware of the burden on the property when they purchase, so I'm afraid I have no sympathy.

When I was looking to purchase a property some 20 years ago, I purposely discounted anything with a through ROW as I had a dog, and young stepdaughter to consider. Had enough trouble with other peoples when collecting refuse from the rear of properties, one in particular was a disabled person, who was unable to take their own bin out, and a near neighbour kept locking the gate, as they had an unfriendly dog, thus preventing us accessing the required property.

At least in this instance they are fortunate in having the ROW at the bottom of the garden, so many round here run directly along the back of the houses, with the main garden the other side of the ROW.

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