Right of way, ownership.

Discussion in 'Finance, Property, Law' started by Chef, Jul 20, 2010.

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  1. The story goes as follows;
    At the end of our garden is a right of way, nominally 3' wide, it is overgrown and not been used in years. So far so good.
    We are about to revamp our garden, and I want to utilise the space, the people at the end of our garden reckon that though it is a right of way, it is actually their property.
    How can I find out if this is the case, and where we stand as regards using it, I intend cutting down the brambles,nettles etc, and laying turf, so it would not impinge on access, although it is a dead end, and the next bit of the pathwas annexed before we moved in.
    Any pointers would be welcomed.
  2. Sympathetic_Reaction

    Sympathetic_Reaction LE Book Reviewer

    First port of call should be your deeds, they should contain a map with the boundaries marked on it, along with any rights of way and other issues.

    Unfortunately not all deeds have this and even when they do they aren't always clear.

    Second option is to try and find out from the local council planning dept about the right of way, firstly because it may give you some information on who owns the land and secondly even though it might not have been used for a while it is still a right of way and therefore you can't just use it without going through the legal process to stop it being a right of way.

  3. Thanks very much, that's given a few useful pointers.
  4. OldSnowy

    OldSnowy LE Moderator Book Reviewer

    Quick word of warning - there are people - well meaning, I'm sure - who, on hearing that there is any sort of RoW, will go and use it, to maintain its viability. Now this may be the whole point of RoWs, but if as you say your one has not been used for a long time - and you can prove it - you may be able to get it removed.
  5. seaweed

    seaweed LE Book Reviewer

    Your county RoW officer should have a definitive RoW map. If it's shown on there then it's a RoW. If not, you need to prove it hasn't been used by anybody for 12 years I think (reverse of claiming to have used a RoW for 12 years which is needed to establish a new one) but of course proving a negative is difficult. Ownership of the land is basically an irrelevance to the RoW argument as SOMEBOY always owns whatever land a RoW passes over, and the owner has certain liabilities and legal obligations to keep it clear. If you are going to be visited or publicised, clearing the jungle is NOT ging to help, you need to show it in its original impenetrable state! County should have a helpful booklet about RoWs ... perhaps. There is also the possibility that some neighbouring property may have a private RoW over the land shown in their deeds. You may need to go a bit further than chatting up the chaps on the internet!
  6. There seems to be a bit of confusion over this. Is it a public ROW or is a right of way used by yourself/your neighbour?

    If it's private then the proof of the pudding is in the deeds as 'sympathetic reaction' says.

    If it's a Public ROW then it should be on the county's definitive map. If not then it's not currently a ROW in law and to get it made one takes a creation order which you can object to. The only way then to get it 'dedicated' is by proving 20 years plus continuous use, and if it's long been blocked then this is probably not the case. And it takes forever for this to be proven to an inspectors satisfaction.

    Now the bad news. If it is a PROW then it remains one, whether used or not, and to divert it or close it will take lots of time and money! The better news is that if it is your neighbours and it is a PROW he is, in law, totally responsible for maintenance of fences gates overhang etc, in fact anything except the surface!
  7. Yeah just to resurrect this one given that I'm in a legal questions frame of mind today - is he claiming that his property has some kind of easement on it? That's a technical legal term used to describe the right of access over someone elses property than an adjoining property may have in the event of them being 'landlocked'.

    If he is claiming that it will definitely be part of the root of title and deeds which were (i.e. should have been) checked by your solicitor upon acquisition of the property in question. If it is there and your solicitor in question did not identify this to you in his legal report on the deeds then you can have fun with rights of redress using various means including the law society and the SRA for lack of due skill, care and diligence in their (the acting solicitors') examination of title deeds.
  8. If you and your neighbour are keen to lose your houses then have a chat with a solicitor. I guarantee that he/she will say something like "I think you have a good chance of winning this"
    Brother is a solicitor and he inwardly cringes when anyone contacts him with a boundary dispute. There will only be one winner in those sort of situations!
  9. Or you could try the land registry, as a previous poster put check your deeds as they set out your boundaries (if you have a mortgaged or you own your property).

  10. Stand there with a shotgun and shot "Get orf my laaaaaaaaaaaaaand!"
  11. Don't even go there, I've got a ROW through my garden along the side rather than the back. as the land is large i kept live stock, which got harassed by dogs. so i shot the f****rs. thinking that's OK etc. Next thing i know i lost my Gun license and had every ROW w****r invading my space. so i boarded up the path to stop everybody gawping. So next i get a Breach of the piece, bound over to keep the peace to the tune of £100 after I threatened the one or two balshy buggers who step over my barricade. My brief said Boundaries are best left alone, and if you don't like it, move! whatever you think you are going to do [and especially land grabbing] remember balshy ROW enthusiasts will always be there to spoil your day. So don't bother have cup of tea and still don't. Hope that helps
  12. Chef:

    I am not a lawyer in the UK, just a lawyer in the US. I hate to tell you but laws regarding these issues can be a bit complicated here and as our legal system is based on yours, probably are there also. I cannot at this time get into "Introduction to the Law of Real Property' as tha would be a full term in law school.

    I won't touch the issue of public rights of way as this is an area where UK law differs significantly from the US and in ways that we often consider a bit bizarre.

    As to easements:
    Easements can be created a number of ways; by deed, by prescription, by necessity .... . The most common form is an easement granted by a deed or similar document filed with the appropriate Registrar of Deeds or whatever they are called in the UK. Most often the easement is created by deed saying something like "Adam, owner of Blacacre grants to Bruce, owner of Whiteacre and easement upon a portion as follows (lengthy description of the metes and bounds) for the purpose of crossing and recrossing said parcel to access (something). Often there is a specific purpose such as "so oil delivery business may bring oil hoses to the fuel tank located in Whiteacre". Please note that the one granting the easement still owns the property and may (usually) use it in a way that does interfere with the grantees use of the rights granted in the instrument creating the easement. One comment about checking deeds. At least here in the US a great many deeds contain language saying something like "the property aforesaid is conveyed subject to any and all easements of record". This is what lawyers here refer to as "covering your arse". The property may or may not be subject to an easement, you just do not know. To explore the situation properly a lawyer may have to examine the titles of both properties and any abutting properties that might benefit from an easement at least back to the original subdivision. Running a title back a long time can get costly here and I presume it would there. This situation is under the Common Law system of title. I think that much land in the UK is now registered land under the Torrens System and if an easement is not noted on the certificate of title then it does not exist. I have no idea how your title is recorded or registered.

    I am not sure if this is helpful to the original poster. I hope so but if not remember that I am not licensed in the UK and therefore I cannot charge you legal fees <grin>

    Good luck with this.

  13. Hi David
    Acts 1:20 "For it is written in the book of Psalms, 'LET HIS HOMESTEAD BE MADE DESOLATE, AND LET NO ONE DWELL IN IT'; and, 'LET ANOTHER MAN TAKE HIS OFFICE.'
    So this man who has a Nobel peace prize and has got you lot out or Iraq should be replaced by who?
    Did you know that GW Bush had a measured IQ of 97, and that you should allow 10% for variation when it comes to IQ's, so 97 less 10% is 87.
    The level of IQ to determine mental incompetence as far as death row Texas is concerned is 85
    Nice to know that the US was run by somebody two point short of been classified nuts
  14. What is your IQ?
  15. Note the left hand column:

    Its IQ may well be much higher than that used for posting ...

    Edited to add: having seen some of its other posts, I'd reckon anybody willing to troll the Snail clearly has a severe IQ shortage.