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Aston Lawyer
Aston Lawyer, Solicitor
Category: Property Law
Satisfied Customers: 10176
Experience:  LLB(HONS) 20 years of experience in dealing with Conveyancing and Property Law
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There is a cottage that has right of access and services down

Customer Question

There is a cottage that has right of access and services down our drive. This has recently been purchased by a builder who is living there whilst doing some much needed renovations. There is also an outbuilding on his land. He has applied for planning permission to convert this outbuilding into a dwelling.
1/ Would this dwelling have the same rights as the cottage if it were sold on to a third party?
2/ Would it have the same rights if he kept ownership of it himself?
3/ Would it have the same rights if it was registered as a new title deed?
Submitted: 1 year ago.
Category: Property Law
Expert:  Buachaill replied 1 year ago.
1. Can you better explain the situation. Who owns the drive? Is it a public roadway? Or is it a private right of way? Who owns the land over which the drive runs? Have you seen the title deeds to the drive? What access route would the outbuilding use? Is it the same drive?
Customer: replied 1 year ago.
The Driveway is owned by ourselves. It is not a public roadway but does have a public footpath down some of it. The land and it's immediate surroundings are owned by ourselves. As owners of the land, we have all the full title deeds. The outbuilding would need to use the same route as the cottage access.
Expert:  Buachaill replied 1 year ago.
2. Has the drive being adopted as a public roadway, as it has a public footpath down some of it? If not, on what basis was the public footpath put in?
Customer: replied 1 year ago.
The drive is not adopted. It only goes to our properties and the cottage. Being a rural location the footpaths are of very long standing. Some go across our fields and some go across the fields of the cottage as well. The short section on the driveway is the only bit that has a proper surface to it.
Customer: replied 1 year ago.
This driveway and services are maintained by ourselves.
Expert:  Buachaill replied 1 year ago.
3. I have thought about this issue and it seems to me that if your title deeds are silent as to the existence of a right of way that there is a public right of way by reason of long usage over your land to this attached cottage. By section 31 of the Highways Act, 1980, a right of way becomes a public right of way where it has been used by the public for over 20 years and the landowner does not seek to challenge it.
4. Under section 31, if a route is enjoyed by the public for 20 years or more, as of right and without interruption, the path is “to be deemed to have been dedicated as a highway”, unless there is sufficient evidence that there was no intention during that period to dedicate it. The 20 year period is counted back from the date when the right of the public to use the path was brought into question. This often happens when a new landowner moves in and challenges the public use of a path not yet shown on the definitive map. So where section 31 says “to be deemed to have been dedicated as a highway” what this really means is that the path is to be declared to be a highway. Accordingly, if you were to challenge the right of way on the basis of usage by any new person who bought the outbuilding from the builder, then time would be calculated back from the date you challenged it, with the person buying it having to show 20 years user. Be aware that would be with the assistance of the builder and whoever was the builder's predecessor in title. 5. So here if you were to challenge this right of way, you would need to be clear of your ground, as the builder and his predecessor in title will clearly assert a right of way and help any purchaser who buys the outbuilding from them. My advise would be to challenge it and seek to obtain a payment only if you are on certain ground and the evidence is in your favour. Otherwise you just risk running up legal costs as the person who buys the outbuilding has to fight to the bitter end, as otherwise, their property is worthless.
Customer: replied 1 year ago.
Correct me if am wrong. A footpath is accessible to feet only. It is not a bridle path." Footpaths" are a right of way for pedestrian traffic only and excludes bicycles, hooves and vehicular access. It is not a pavement or roadway.
Expert:  Buachaill replied 1 year ago.
6. If this were a footpath, why have you described it as a "drive" or "driveway" and as not being a public roadway but having "a public footpath down some of it". I have only taken the facts from what you have described?? Obviously the applicable law is different depending on the facts. However, you have used a certain description in your Questions and replies to my series of Queries.
Customer: replied 1 year ago.
The definition of a driveway is a private road leading from a public road. The fact that there is a footpath down part of it does not make it a public thoroughfare for all traffic. The ownership of the land does not alter. A footpath is a right of access to pedestrians only.
Expert:  Aston Lawyer replied 1 year ago.
Hello and thanks for using Just Answer.
I am Al and am happy to assist you with your enquiry.
Could you please provide me with the exact wording to the right of way/services which benefits your neighbour's land?
I look forward to hearing from you.
Al
Customer: replied 1 year ago.
Hello Al
Please give me a bit of time to dig out the relevant part of the deeds.
Expert:  Aston Lawyer replied 1 year ago.
No worries. I am online on and off all day.
Kind Regards
Al
Customer: replied 1 year ago.
Boy...This is doing my head in! The following passage relates to two parcels of land, one with the cottage on it and the other with the outbuilding. They both have their own title deeds but are owned by the same family." Together with right of way with or without vehicles at all times and for all purposes over and along the driveway coloured brown on the said plan the transferees and their successors in title contributing according to user towards the cost of repairing and maintaining the said driveway from time to time. And together also with the right in common with the Transferors and their successors in title to drain into the cesspool on the adjoining land of the transfers subject to the Transferees paying one-third of the cost of emptying repairing and maintaining the said cesspool from time to time Together also with the right to the free passage and running of water and electricity through the wires and cables now or within 80 years from the date hereof in under or over the transferors adjoining property and the right to enter on the said property for the purpose of repairing maintaining and renewing the same"My questions are:-
1/ If this refers to two specific parcels of land, if one of those is then divided and sold on with a different title deed, do these rights still apply?
2/ Is a conversion of an outbuilding to a dwelling considered "repairing maintaining and renewing the same". As far as I am aware the outbuilding does not have water or electricity at the moment.I hope you can help. We do not necessarily object to what is proposed but we need to know the implications of access and increased loadings of services over our land. As our new neighbour is a builder it is possible that he might apply for further permissions.
Expert:  Aston Lawyer replied 1 year ago.
Hi!
Thanks for your reply.
You mention that the wording refers to both the cottage and outbuilding. Could you please therefore confirm that the wording "Together with a right of way...renewing the same" is the wording on the title deeds to the outbuilding?
Cheers
Al
Customer: replied 1 year ago.
The extract I gave you is from our title deeds. We do not have the title deeds to the outbuilding or the cottage. I have tried to get a copy through the land registry but all I got was the names of the registered owners. Is it possible to get the full deeds?Regards
Vanessa
Expert:  Aston Lawyer replied 1 year ago.
Hi Vanessa,
Oh ok.
A right of way or a right to lay services "attaches to land" rather than a person. Whatever land has the benfit of the rights means that those rights remain in place whoever owns the land.
So, we need to find out what land has the benefit of the right of way/services as mentioned in your Deeds.
Although you have quoted the wording of the rights, what does it say before the paragraph you have quoted, as to what land has the benefit of the rights?
(Although we should be able to work this out from your Deeds alone, these rights should be quoted in your neighbours Deeds also. You should be able to obtain a copy of their Deeds (called "Official Copies" from the Land Registry website. The wording may be on the title itself or it may be contained in a separate Conveyance,which will be referred to in the Property Register).
I look forward to hearing from you.
Al
Expert:  Aston Lawyer replied 1 year ago.
Hi,
Can I assist you any further?
Kind Regards
Al
Customer: replied 1 year ago.
Hi Al
Sorry. I was out all day yesterday on a birthday treat.
The passage before the section quoted is as follows
"The land is subject to the following rights granted by a transfer of adjoining land dated 14 July 1972 made between (1) Monica Edith Harrison and Margaret Maud Harrison (Transferors) and (2) Richard David Hoare and Shirley Elaine Hoare (transferees) :-
The Hoares were the previous owners of the cottage and outbuilding.
I will also go back on the land registry website to see if there are further Conveyances.With regards
Vanessa
Expert:  Aston Lawyer replied 1 year ago.

Hi Vanessa,

Hope you enjoyed your Birthday!

From what you have told me, as the rights are in respect of the cottage and the outbuilding, both the cottage and the outbuilding therefore have the rights, as quoted previously by you.
Accordingly, you would not be able to stop the owner of the outbuilding (whether it be the Developer or a third party) from exercising those rights to lay services and for the right of way. This is because, as stated previously by me, rights attach to land and have the benefit of any rights which have been granted to the land. Even if the owners of that land change over time, the rights remain in place.

Accordingly, there should be a not on the cottage/outbuildings titles confirming these rights (they will be mentioned in the Property Register of their Official Copies).

I hope this assists and sets out the legal position.

Kind Regards
Al

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