Right of way question
Discussion
Hello all. Can anyone help with a quick question about a right of way? I recently looked at buying some land and when i went to view it got into a conversation with the ( slightly barmy! ) neighbour. She told me she had a right of way through the area i was looking at, which did seem obvious at the time because there was a gate at the back to another part. She also told me it was contaminated land, she owned it and it wasn't for sale, it was her son's, and basically anything else she could to put me off buying it! Anyway ,i had a look at the legal pack and checked the title and associated covenants and there is no mention of a right of way. The woman and her husband sold the area at the front to her son in 2003 , and it has now been recently repossessed by his mortgage company. My question is does a right of way have to be registered on the title to be valid or does it come under something like grandfather rights? While the son owned it there was no issue as it was ' in the family' but there might be with a new owner. My concern was that if, for example, the land behind was sold for building then the access was through the bit for sale which would render 'my' bit worthless. The doubt was enough for me not to buy it but i was just interested in the outcome. Thanks!
I am not a lawyer, but my understanding from is that a right of way can be established through regular use. Certainly this is the case in Scots law, and I imagine in English law too.
Does the area at the back have any other access? If the only access is through the front part, I think they would have a strong argument for having a right of way.
Does the area at the back have any other access? If the only access is through the front part, I think they would have a strong argument for having a right of way.
SrMoreno said:
I am not a lawyer, but my understanding from is that a right of way can be established through regular use.
Yep, but not from just 12yrs of use.http://www.shoosmiths.co.uk/client-resources/legal...
cartoons said:
Hello all. Can anyone help with a quick question about a right of way? I recently looked at buying some land and when i went to view it got into a conversation with the ( slightly barmy! ) neighbour. She told me she had a right of way through the area i was looking at, which did seem obvious at the time because there was a gate at the back to another part. She also told me it was contaminated land, she owned it and it wasn't for sale, it was her son's, and basically anything else she could to put me off buying it! Anyway ,i had a look at the legal pack and checked the title and associated covenants and there is no mention of a right of way. The woman and her husband sold the area at the front to her son in 2003 , and it has now been recently repossessed by his mortgage company. My question is does a right of way have to be registered on the title to be valid or does it come under something like grandfather rights? While the son owned it there was no issue as it was ' in the family' but there might be with a new owner. My concern was that if, for example, the land behind was sold for building then the access was through the bit for sale which would render 'my' bit worthless. The doubt was enough for me not to buy it but i was just interested in the outcome. Thanks!
I'm guessing that as both plots were still 'in the family' it is possible that no express grant of any easement was made and reliance was placed on a grant by implication. If so this was a risk which might well cause some difficulty for the successors in title to both plots. Easement by prescription won't apply here as the elapsed time period is too short.http://findlaw.co.uk/law/property/neighbour_disput...
Thanks for the info so far. It makes interesting reading and i agree she is probably trying to put off anyone interested in it. She was ok (ish) with me but when my wife and daughter went to see it the entrance was blocked with vehicles and she told her to "get off my land"! The first house we bought when we got married ended up having nightmare neighbours and i think that's scarred her for life so this land was a non-starter after that! I'll see if i can talk her round but as it was going to be an investment of her inheritance from her mum I think i've got two hopes!!
There is a potential bear trap from the fact that this land was carved out of a larger area but you really need a lawyer to look at this for you. Section 62 of the Law of Property Act 1925 deals with sales of part and can turn an access into a legal easement. Anything in existence at the time which would be an easement (e.g. a right of way) if the areas were in different ownership are preserved by this section so if there was a path in use at the date of the transfer then a right of way could have arisen.
On any sale we include standard wording in the transfer to exclude this so look for something to the effect that the only rights granted or reserved are those expressly set out in the transfer, there are no implied rights and Section 62 is excluded.
This does not rely on 20 years use so it may be true that there is a right of way and the presence of a gate certainly adds to the possibility.
On any sale we include standard wording in the transfer to exclude this so look for something to the effect that the only rights granted or reserved are those expressly set out in the transfer, there are no implied rights and Section 62 is excluded.
This does not rely on 20 years use so it may be true that there is a right of way and the presence of a gate certainly adds to the possibility.
Billsnemesis said:
There is a potential bear trap from the fact that this land was carved out of a larger area but you really need a lawyer to look at this for you. Section 62 of the Law of Property Act 1925 deals with sales of part and can turn an access into a legal easement. Anything in existence at the time which would be an easement (e.g. a right of way) if the areas were in different ownership are preserved by this section so if there was a path in use at the date of the transfer then a right of way could have arisen.
On any sale we include standard wording in the transfer to exclude this so look for something to the effect that the only rights granted or reserved are those expressly set out in the transfer, there are no implied rights and Section 62 is excluded.
This does not rely on 20 years use so it may be true that there is a right of way and the presence of a gate certainly adds to the possibility.
The front part which was owned by the son (since repossessed by the mortgage lender) is what the OP was interested in buying. FWIW, if I were the OP I would walk away from the purchase as a neighbour with potentially skewed ideas about access rights is not what you want. An example of how a dispute over easements* can cause all sorts of grief read the Scottish case of Moncrieff v Jamieson. IIRC the dispute dragged on for over 10 years before being finally decided by the HoL.On any sale we include standard wording in the transfer to exclude this so look for something to the effect that the only rights granted or reserved are those expressly set out in the transfer, there are no implied rights and Section 62 is excluded.
This does not rely on 20 years use so it may be true that there is a right of way and the presence of a gate certainly adds to the possibility.
* servitudes in Scotland.
There is one aspect about the OP's case which puzzles me. If the part that was sold to the son was the front, which part became the servient tenement and which part the dominant one? Relinquishing title to the land forming access to the rear part doesn't sound like a particularly good idea to me (especially if it was the only way of getting there).
Rude-boy said:
If you really want it get paid for proper insured legal advice.
If you like a challenging neighbour relationship even if there is no RoW get proper legal advice.
If you want practical advice then run, don't walk...
Yes, this, am I right in thinking that one of the costs hidden within a solicitor/conveyancer/lawyer bill is that the advice is underwritten by the Law Society and you have come back if they miss something?If you like a challenging neighbour relationship even if there is no RoW get proper legal advice.
If you want practical advice then run, don't walk...
And yes, run, a long way, fast. I have second property with a loon next door and its a nuisance.
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