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F E Smith
F E Smith, Advocate
Category: Property Law
Satisfied Customers: 9184
Experience:  I have been practising for 30 years.
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I have a mid terraced house with my back garden right of way

Customer Question

Hi, I have a mid terraced house with my back garden right of way (ROW) access through neighbour's garden. What is legally meant by ROW. Is this ROW access under special circumstances or can be used any day as and when required. My land registry document does not state any thing about this ROW. This ROW access is only in the Planning Permission Documents.
Assistant: Thank you. Can you provide any more details to help us find you the right Expert?
Customer: Hi
Submitted: 10 months ago.
Category: Property Law
Expert:  F E Smith replied 10 months ago.

You say there is no mention of this in your Land Registry deeds. Is there any mention of it in the neighbours? Any of the neighbours?

Has it just been used for as long as anyone can remember?

What is the reference to the right-of-way in the planning permission documents?

Customer: replied 10 months ago.
1- My ROW is not mentioned in the Land Registry and also this is not stated in the neighbour's land registry
2- Yes this has been used by us but the current neighbour is selling his property. I don't know if new owner will allow us
3- In Planning Permission Documents of the neighbour property, ROW of my property is shown in the planning map
Customer: replied 10 months ago.
I can attach the neighbour's planning permission document for your view if required
Customer: replied 10 months ago.
Historically this was one Property owned by neighbour. Then he got the Planning Permission for a separate house of the side garden and himself moved into that new house. I bought the existing house which has become mid-terraced now
Customer: replied 10 months ago.
First response was quick and then no reply !!
Expert:  F E Smith replied 10 months ago.

How long has the right-of-way been used by you and your predecessors?

The planning permission will not assist because whether there is a right-of-way or not is nothing to do with the planning authority.

If the right-of-way was removed, would that cause major problems? Is it absolutely essential to access your house?

Customer: replied 10 months ago.
It is just the back side access to garden. I would not say this is a must have unless required by law. My neighbour is happy to include this ROW access in my land registry but he says "this access must be used under special circumstances". I like this access to be used for regular gardening and bin related activities.
I used this access for probably 5 years
Customer: replied 10 months ago.
I believe his planning permission for the new house was approved based on the ROW access to the existing property (which I own now).
Expert:  F E Smith replied 10 months ago.

As this access has always been used with permission and for only a relatively short period of time, then unless it is mentioned in the deeds, or the neighbour agrees, you can not claim any right to use it under the Prescription act (needs 20 years without consent or objection) or any other provision.

With regard to the planning permission only being granted if there was a right-of-way, that’s something for the local authority to deal with.

If ever you come to sell the house, you are going to need to get this right-of-way sorted and hence, it really depends on what the neighbour who owns the land over which you require the access is defining as special circumstances. It may be that taking rubbish out and gardening rubbish he would class as special circumstances and that what he simply doesn’t want is you using it as your daily access rather than using the front of the property or whatever access you currently use.

The neighbour can make what stipulations he likes. Normally, a right-of-way would be stipulated with words such as “a right of way on foot for all reasonable purposes associated with the land”.

If he’s going to specify that it’s only to be used for taking rubbish out or when moving house, that is very difficult to enforce without blocking it altogether.

Can I clarify anything else for you?

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Best wishes.


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