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Aston Lawyer
Aston Lawyer, Solicitor
Category: Property Law
Satisfied Customers: 10635
Experience:  LLB(HONS) 23 years of experience in dealing with Conveyancing and Property Law
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A neighbour has a planning permission application 2 storey

Resolved Question:

Hi,
A neighbour has a planning permission application for a 2 storey extension being built over a shared driveway. In my deeds it states that;
'The land has the benefit of a right of way over part of the passageway
not included in the title.'
The driveway is between our houses and historically was used to access a garage on my property that we have removed, there was never a garage in their garden. We both have private driveways to the front so parking isn't an issue. The shared driveway is not used for cars but is used as an entrance to and from the rear of the properties. They will be building over their side and will lose this access.
My concerns are that although I don't have an issue with them building there, it explicitly says that I have right of way over that part of their land. I don't want to be in the position later that if we or them sold, it would be picked up on sale of the house and cause an issue. I'd like to know whether there is anything that can be put in place to save any legal issues later down the line if a sale of either property was to occur.
Thanks in advance.
Submitted: 1 year ago.
Category: Property Law
Expert:  Aston Lawyer replied 1 year ago.

Hi,

Thanks for your enquiry.

You are right in being slightly concerned over the proposed extension. The neighbour should of course not be building over the shared access, so you have 2 options-

1. Write to him, via a Solicitor, threatening injunction proceedings if he does build.

2. If you are happy for him to proceed, which I think you are, you both would need to enter into a Deed, releasing your right of way. This Deed would need to be drafted by his Solicitor and registered at the Land Registry. This would in effect then extinguish your right of way.

To be honest, it is more of a problem to your neighbour if the above is not done- as any potentially Buyer of his property will be advised not to proceed, on the grounds that you could, in theory, request that any extension be removed!

It would therefor be in your neighbour's interest to get the Deed done and for him to pay for both his and your legal fees in executing the Deed.

I hope this assists and sets out the legal position.

If I have helped, please would you be kind enough to rate my answer.

Kind Regards

Al

Customer: replied 1 year ago.
Thanks for your answer. Clarifies a lot of the concerns I had. I have attached my title deed. To note it also says in my title deed;'The part of the side passageway included in the title is subject to rights of way.'Does this mean they have a right of way over the shared drive also which would imply that if I wanted to build there I would also be infringing on the title deed. If we do as above and have their solicitor approach the land registry and extinguish the right of way it would enable us both to act as we please on our land and not cause issues later on.I have no intention of stopping their works, just wanted to clarify.Thank you.
Expert:  Aston Lawyer replied 1 year ago.

Hi Mark,

Thanks for your reply. I confirm that both parties share a right of way over the other's half. So, it would make sense for the Deed to release each other's right of way over the other's drive. I would still try and get your neighbour to pay your legal fees, but it comes down to bargaining at the end of the day. Good luck. Kind Regards Al

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