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Thomas
Thomas, Solicitor
Category: Property Law
Satisfied Customers: 7506
Experience:  UK solicitor holding an England and Wales practising Certificate.
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I have a right of way in my deeds to the south border of my

Resolved Question:

I have a right of way in my deeds to the south border of my house (where my back garden is). We are doing building work at the moment and brought a smaller digger in through the back road and through our fence (took a fence panel down) - but a neighbour over the back is claiming we don't have the right to do that.

The deed says:

-Land tinted in blue on the filed plan is subject to rights of way
-The land is or may be subject to rights of access along the southern border

My question is - does the right of way give us access for maintenance and building work on occasion if needed? Or is my neighbour correct?
Submitted: 2 years ago.
Category: Property Law
Expert:  Thomas replied 2 years ago.
Hi,

Thanks for your question.

Have you taken the passage about the right from your title, or from your neighbours?

What are the works for which you require the digger access?

Kind regards,

Tom
Customer: replied 2 years ago.

Passage is from my title - pulled from Land Registry site this morning along with the plan.


 


Should have also said - title plan clearly shows we own a portion of the private road that runs along our southern border between our house and his. A wedge of the road is ours - and the right of way marking is on that bit of road - presumably showing that others have right of way down the private road even though we own that segment of it. This diagram is from the deeds...


 


Plan from Title Deed


 


The works we are doing - are building an orangery (a permanent conservatory integrated with the main house) at the back of the house. This is some way from the edge of the property (estimate about 10m) - ie is not close to the border or to their property (which is the other side of the private road).

Expert:  Thomas replied 2 years ago.
Hi,

Thanks for your reply.

If the passage is stated is on your title deeds and the attached plan is the filed plan then it indicates that parts of your land are subject to rights of way (ie. the blue part).

Does your title or your neighbours title state that you have rights of way over the land adjoining the southern boundary of the land?

Kind regards,

Tom

Customer: replied 2 years ago.

Ours is silent on that other than the passage I included originally. the neighbour who is complaining to us is the one south/south east of us (ie directly below us on the plan I attached. He believes he owns the all of the private road segment between our properties which our deed suggests he doesn't.


 


We believe our neighbours on the right of us on the plan have a similar segment of the private road on their deeds. Our understanding from our solicitors when we moved in (10 years ago) was that the intention was that every property both north and south of the private road owned a segment of the road - but that road was a right of way (hence the blue on our segment) so that all the people on the south side can access their property (its the only way they can get in to their property). Those of us living on the north of the private road all access our properties from the road to the north.

Expert:  Thomas replied 2 years ago.
Hi,

Thanks. Drafting your answer now. 10 mins please.

Tom
Customer: replied 2 years ago.

thanks


 

Expert:  Thomas replied 2 years ago.
Sorry, I'm having connection problems here. Another 5 mins or so.

Thanks for your patience.

Tom
Customer: replied 2 years ago.

no problem

Expert:  Thomas replied 2 years ago.

Hi

Thank you for your question and patience, I’m Tom and I’ll try to help you.

It’s not absolutely clear that you have a right of way from the passage that you have stated. The passage appears to indicate that the portion of your land tinted blue and presumably forming part of the access is subject to rights of way.

It certainly appears from the set up of the passage and the access generally, that a right of way should be in your favour even though the deeds are silent. I would refer back to the solicitor that acted for you in the purchase and get them to show you how and where the access is granted.

If access for maintance is granted then you would have a good argument against the other owners restricting access for these purposes. However the other owner that access for maintenance does not include access for improvement works which is what your works would be

On the basis that there is no apparent express grant in your favour on the passage you refer to, the other owner might have a case for attempting to restrict you carrying out these works.

However, I would think practically about it. If the other owner is not minded to formalise matters by applying to court for an order/injunction for you to cease the works then there is not going to be much that they can do about it.

Once you have established the right of way from your solicitor I would show it to the neighbour and state that you do have a right of way. If no such right is granted you can either ignore hoping that they won’t take action or you can bluff by stating that you consider that you have a right of access which you can require from court under the Access to Neighbouring Property I don’t think you would actually be successful in claiming this right at court though, because it relates to “-preservation” rather than improvements.


My goal is to provide you with a good service. If you feel you have received anything less, please reply back as I am happy to address follow-up issues specifically relating to your question.


Kind regards,


Tom
Customer: replied 2 years ago.

Thanks Tom.


 


His main argument was that he owns all the land on the private road adjacent to our border. I think our title plan clearly shows that is not the case. So I assume I can show him the plan and assert that his claim to own that segment of road in its entirety is incorrect?

Expert:  Thomas replied 2 years ago.
Hi,

If the dotted lines on the plan are the private road then he does not own all of the access it's true. However, a signifcant portion of the road from the plan is not owned by you.

Whether he owns it or not, I don't know. You can check by outlining the road on an plan and submitting an index map search to the land registry. You would have to complete form SIM from the LR site to do this:-
http://www.landregistry.gov.uk/public/faqs/what-is-a-search-of-the-index-map

This will reveal which titles have ownership of the land and you can then download the titles to find our who the owners are.

Kind regards,

Tom
Thomas, Solicitor
Category: Property Law
Satisfied Customers: 7506
Experience: UK solicitor holding an England and Wales practising Certificate.
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