“Right of way” what are the limits of their use?

by Readers Question

11:02 AM, 9th January 2017
About 2 years ago

“Right of way” what are the limits of their use?

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“Right of way” what are the limits of their use?

Hi everyone, there is a piece of land adjacent to ours and the people that own it are applying for planning on it. However, the only access they have to the land is through ours. There does not seem to be any specific route or size of their access over our land and the only paragraph of text we have referring to it is as follows.right of access

Rights granted for the benefit of the Property:

A right of way at all times and for the purpose of gaining access to and egress from the property so far as is necessary over the land shown coloured brown on plan B *(this is our land)* annexed hereto subject to the transferee the owner or occupier for the time being of the property making a due and proper proportion of the cost of maintaining and repairing the said land coloured brown such proportion in the event if dispute to be determined by the transferors surveyor.

If anyone can shed any light on this issue, I would be very grateful.

Thanks

Hugh



Comments

Graham Bowcock

12:45 PM, 9th January 2017
About 2 years ago

Dear Hugh

At least you have something in writing and the good news is that it doesn't specifically permit the access to be used if the adjacent property is redeveloped. However, it does not deny use for redevelopment. I hope you are in discussions with your neighbour.

If you take the line that the wording does not permit development of the property then you are in control and can either agree a fee (ransom) for varying the use to permit development or could even not allow the development at all (depending on your view and the impact of it on you and your property). The value of your access could be quite significant but will entirely depend on the nature of the scheme being proposed and whether or not there are any alternatives available. You have not said what the scale of the development is.

Does the neighbour need you access for services (i.e. electric, water, etc.)? If so then they would almost certainly not have rights under the agreement you have quoted and would need to reach agreement with you for wayleaves and easements.

I also doubt that your neighbour has any rights to improve the access (which may be required by planning conditions) so, again, you have another card to play.

From your neighbours' perspective they ought to sort the matter out with you properly at an early stage as they will not want to find a problem when they come to sell or re-mortgage, so in many ways you are at an advantage. I would suggest that you enlist the services of a local chartered surveyor to assist you; if there is a deal to be done then legal and surveyor's fees need to be paid by your neighbour as part of any settlement.

I doubt you will get a definitive answer from a forum such as this as there will be many facts to be considered by those advising you, but I hope my comments are helpful as a staring point.

Graham

Charles King - Barrister-At-Law

12:58 PM, 9th January 2017
About 2 years ago

Hi Hugh, this type of problem is not uncommon, and many rights of way (easements) are much more specific than yours as to exactly what sort of rights of way are allowed (e.g., vehicular, pedestrian, horse and carriage, etc). As you can probably guess, the extent to which you neighbour's right of way is 'necessary' is the key to the problem in your case, and is also the difficulty. The purpose of the right of way originally envisaged by the people who agreed to it and drew it up in the first place will be a crucial factor. Whilst some small reasonable departure from the original use might be tolerable to a court deciding upon the extent of an easement, a substantially different use or increase in scale of use will not. For example, a garden gate (such as that shown next to your post in this site (very creative Mark!)) will not allow redevelopment for vehicular access. There is no straightforward answer, save to say that a neighbour cannot take the mickey. If you are talking about a shared residential driveway, where you are the legal owner of the drive, it may or may not be acceptable to allow use for an additional new build property, for example. Judges in the county court (or in your case most likely the First Tier Tribunal of the Land Registry) don't like stifling redevelopment, nor do they like steamrollering over someone's property rights. I guess that your case would involve a classic balancing act.

Jay James

16:56 PM, 9th January 2017
About 2 years ago

If I understand correctly, your neigbour has some land which they want to build on. This land is adjacent to your land. They wish only to build on their own land and not on your's. If they build, I assume they will need greater use of their right of way. Is this a correct summary of the practical situation Hugh?

The neighbour has a legal right to use a specified part of your land to gain access to their land. Whether or not they use that right, they must pay a proportion of the cost of maintenance and repairs for the part of your land over which they have a right of way. (If you and the neighbour cannot agree then) it is for your surveyor to determine the proportion of the cost your neighbour must pay to you for the right of way. Is this a correct summary of the legal situation Charles King?

yew tree

20:03 PM, 9th January 2017
About 2 years ago

http://www.gardenlaw.co.uk
try this site for info on rights of way , loads of good info
from people who know

Ms Leaseholder

14:31 PM, 14th January 2017
About 2 years ago

"Whether or not they use that right, they must pay a proportion of the cost of maintenance and repairs for the part of your land over which they have a right of way" wouldn't cost liabilities need to be written into the contract? We have right of way in order to access our flats, & our contract doesn't mention anything about costs.

Jay James

17:57 PM, 14th January 2017
About 2 years ago

Reply to the comment left by "Leasehold Owner" at "14/01/2017 - 14:31":

At the end of my comment I asked if I had grasped the legal situation correctly. Hence the excerpt in your comment may or may not be correct.

Jay James

18:08 PM, 14th January 2017
About 2 years ago

Reply to the comment left by "Leasehold Owner" at "14/01/2017 - 14:31":

What is written in your lease about "right of way"? Does it use that phrase or maybe something more like "use of common areas"?

Charles King - Barrister-At-Law

19:10 PM, 14th January 2017
About 2 years ago

Perfectly correct Jay. Interestingly the right to use the easement seems to be "subject to" the payment, so there is a good argument for saying that no right of way can be exercised until payment has been made. The right to use the easement is conditional upon a preceding event (payment), although "making a due and proper proportion" doesn't make sense. Land rights subject to 'conditions precedent' are subject to special rules, so are 'due' payments. And who is 'the transferor' whose surveyor is supposed to sort it all out (the transferor will be defined somewhere in the documents). Plenty of work for lawyers there in interpreting that clause! You're best to try and agree something with the neighbour.

Nick Pope

8:47 AM, 15th January 2017
About 2 years ago

You haven't made any comment as to the right of way itself other than it is over the land coloured brown. Whilst you don't mention a plan it is possible that there is one held at the Land Registry or, in the case of unregistered land (most unlikely depending on the area where you live) and I suggest you get hold of a copy of this asap.
Please note that my comments are subject to the adjoining owner not being able to have the terms of the right of way set aside which can be done in certain circumstances if there are very good reasons to do so. Courts generally try not to interfere. In addition if the land is landlocked, courts can grant a right of way if necessary. ( https://www.hepworthmurray.com/2015/02/land-landlocked-can-get-access/ ). If they have any other means of access then this does not apply.
This may show that the brown land is only a narrow strip which is suitable for pedestrians only and not vehicular access. No matter how much your neighbour whinges he cannot use vehicles to get on site. I doubt any developer would wish to carry a few thousand bricks, concrete etc. onto site by hand or in a wheelbarrow. Please note that they can't use machinery to lift over your land either. In addition the local planning authority may require that the property has a vehicular access as a condition of planning.
If the land is wide enough, is there a made up driveway? If not thay cannot insist that you, as landowner, provide a hard surfaced road or drive and so it would be difficult for vehicles and heavy lorries in particular to get to the site without damaging your land. Even an existing gravelled drive could be damaged.
It's interesting that if terms can't be agreed as to maintenance then it's your option to employ a surveyor to set the level of maintenance costs. They would need to be reasonable but the costs would probably fall to the neighbour and would be significant. Surveyors love a juicy and complicated neighbour dispute!
Having said all of this you can be difficult with your neighbour and stick to the letter of the right of way or simply reach an agreement with an appropriate fee or other inducement to facilitate their development. A neighbour of mine did exactly this and agreed to widening a right of way by approx. 1 metre to alow for vehicular access for 1 house. He ahgreed to swap approx. 20 sq.m. of his garden for approx. 75sq.m. of land at the side of his house with a newdouble garage on it. Everyone happy!

Badger

14:56 PM, 16th January 2017
About 2 years ago

Reply to the comment left by "Nick Pope" at "15/01/2017 - 08:47":

"https://www.hepworthmurray.com/2015/02/land-landlocked-can-get-access/"

Interesting article.

It is worth being aware though that the supplied link refers to advice from an American firm of lawyers and is therefore presumably only strictly relevant to situations in the 'states.

Interesting article all the same, as I say.


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