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Don’t let rights of way wreck house sale

So if you are buying a property that has a garden with a communal path across the back of it or if you are someone who thinks they have a right of way over someone else’s property this would be one way of checking.

According to Adams & Remers solicitors, it is important to look at these rights as from time to time they change or become obsolete.

For example at one property there was once a right of way for the neighbours to come onto the land to use what was a communal outside toilet.

Due to improvements in sanitation changes had occurred; both of the properties had their own internal bathrooms and had built extensions so that the original access to the old washhouse was in fact no more – and neither was the old washhouse.

Still against the titles of both of those properties was a right of way to use the washhouse building at the end of the garden at all times.

It is important to note that where a right of way is granted by a Deed, unless the Deed is formerly altered or revoked, it will continue as a right even if it is not used. For the people with the outside toilet in their garden it was suggested that since they were on good terms with their neighbours they simply entered into a document between them confirming that the neighbours no longer had the right to use this so that it could be appropriately noted at the Land Registry.

Adams & Remers said it was important to remember that the deeds may not hold all the answers.

There are other types of rights of way. Some of these are public rights of way and these will be easy to find on any ordnance survey map or through your Local Authority. A Local Authority search can check for these when you buy a house.

There are also undocumented rights of way which are those that have not been covered expressly by any deed in the past, nor are they public rights of way. Nevertheless they could exist just as much as those other rights. These can arise in several ways.

Once such method would be by long user, for example in the case of a row of cottages where there is a path across the back of all of them (so that their garden refuse and other refuse can be taken out to the road) – if this was not already created by Deed and the cottages have been there for a long time with these rights being used continually it is likely the rights will have arisen "by prescription".

These days if one can give evidence (by means of an affidavit or statutory declaration) that there have been at least 20 years use of these "without force, secrecy or permission" they can be regularised and put on the Land Register. But just because they are not on the Land Register does not mean that these rights do not exist.

Other rights arise by necessity. For example if a house has a strip of land between itself and the pavement which is not owned by the house nor by the Local Highways Authority and is not a public right of way and there is no other way of reaching the house but by crossing this strip it is very likely that rights will have arisen out of necessity for the access to that property. This means that if the owner of the strip of land that needs to be crossed were to try and stop the user of the access a Court would be unlikely to prohibit the access altogether unless there were other extenuating circumstances.

According to Adams & Remers, it is always important to remember to tell your solicitor to look out for unusual accesses such as rear accesses that may not be clear on the Deeds or if a property is entered not by the front but by a side passage for example. Any potential problems can then be sorted out. If you do buy a property and have a right to use a right of way do also note that you may also have an obligation to share the cost of maintaining that right.

If you have a property and have a problem with people using their right of way perhaps because you think they are being unreasonable then it is always worth looking into this and a solicitor should be able to help  if there are problems. Some rights of way for example very clearly set out that a right is to be used at limited times conversely it might say it is to be used at all times and for all purposes. Some rights limit whether or not you can use a vehicle.

The most important thing about rights of way is that you are inevitably dealing with other owners of land, other owners of rights. Both tend to think they have the paramount right! While it is easy to become flustered in these circumstances it is always wise to keep a level head.

After all a balanced approach will often prevent a situation turning into a litigation nightmare. In most cases compromises can be reached which will suit all the parties much better.

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3 thoughts on “Don’t let rights of way wreck house sale

  1. John Harvey says:

    Disagree that right of way needs formal release. Abandonment is possible. See Land Registry Guidance at http://www1.landregistry.gov.uk/assets/library/documents/lrpg062.pdf

  2. Bill says:

    I remember watching a documentary a while ago that showed ramblers wanting to build a “right of way” that cross the back 3 feet of 20 or so houses back gardens. There was a perfectly normal footpath only 20 feet away that could have been used. Just like anything common sense is required from all parties.

  3. Shane Hillman says:

    My neighbour goes through my garden to get to there’s, even though they have a front door and they have access to there garden without walking through mine. I’m renting this property. Who can I ask about rights of way apart from landlord, I asked them but they say its there right of way. (3 ways to get into there property) I have only a back door.


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