Right of access denied

DaftyDuck

There is a huge difference between an unadopted road/driveway and someone's private garden.....

I have an unadopted road running through my garden... serves three other properties. (Well, two, as one actually has no access rights at all, but that's another bag of frogs).

It's my private garden (and farm access), but the other three (two) properties have every right to trundle through it, as per their and my deeds.

I also own a lovely Victorian house in a city, with much the same access at the rear as the OP. Some nearby houses have mutually agreed a very profitable rejig of this access.

danslenoir

Well, a potential (and complicated) spanner in the works...

I did a bit of digging up and came across a pretty well-defined legal principle called 'unity of seisin', whereby when two properties of which one enjoys a ROW over another are acquired and owned by the same person, the ROW is automatically and permanently extinguished.

The conveyance in the title register of neighbour's property in which the ROW is stipulated was in 1954 from historical owner of neighbour property (Owner A) to another historical owner of neighbour property (Owner .

In our title register, the original conveyance referred to is on the same date from the same owner (Owner A) to another historical owner of our property (Owner C).

Given that the ROW is stipulated in this conveyance, could this mean:

(i) If the ROW predates the 1954 conveyance, that it was extinguished when Owner A acquired both properties (assuming he acquired them and was not the original builder)
(ii) The ROW was not in existence prior to this conveyance and it was Owner A who introduced it when he split his estate?
(ii) Even if the ROW was extinguished prior to the 1954 conveyance, the fact that Owner A included it in the 1954 conveyance means that it was reintroduced on that date?

Is there anyway I can check for all previous owners of the property, to try and trace down whether there have been any other joint owners since that 1954 conveyance (in which case the ROW will have almost certainly been extinguished and would be gone for good, it would seem) and trace further details on the ROW to see whether it predates that 1954 conveyance?

UPDATE: I just got an email from our solicitor who stated that the ROW is granted in that 1954 conveyance when the land was sold by Owner A. So it seems the ROW is still valid and enforceable.

However, our solicitor acknowledged the aforementioned legal principle and said she was unable to check whether there have been any other joint owners of neighbour's property and mine since that 1954 conveyance given that not all historical owners properties are listed on the title register. Is there any way I can find this information myself? It seems unlikely that there would have been any other joint owners since then, but it would be good to verify this for peace of mind because, as mentioned, if there have been then the ROW would probably be gone for good.

chris_m

I'd stop digging if I were you. Let your neighbour do the digging if it really bothers them enough.

princeofpounds

UPDATE: I just got an email from our solicitor who stated that the ROW is granted in that 1954 conveyance when the land was sold by Owner A. So it seems the ROW is still valid and enforceable.

Indeed. It would be quite normal for the existing rights of way to be preserved by the owner for an ongoing sale, unless they had a specific interest in extinguishing them.


They would probably just copy the same old deeds they bought it on in order to sell it. Because it is a) easy and b) the assumption would be that most ROWs exist for a good reason that the buyer of any property would care about.


Unity of seisin just means they don't have to do that.


It's not for you to prove the ROW was extinguished.

Nobbie1967

I think the OP is taking the right approach by being cautious and not just rushing to judgement. A couple of weeks of not using the ROW will have no legal effect and just demonstrates to the neighbour that they are taking nothing for granted.

Being generous, the the neighbour may have mis-remembered what her solicitor told her, so I would suggest that the OP ask the neighbour to contact the solicitor to give the basis of the advice as all the legal advice you have is that the ROW exists. Give a timeframe for this as you don't want it to drag on forever. Maybe say if you've heard nothing in a couple of weeks you'll assume that the ROW exists and start to use it. That leaves the ball firmly on her court to use an earlier analogy.

rosyw

Nobbie1967 wrote: »

I think the OP is taking the right approach by being cautious and not just rushing to judgement. A couple of weeks of not using the ROW will have no legal effect and just demonstrates to the neighbour that they are taking nothing for granted.

It's all very well being cautious, but what is OP supposed to do with the bins in the meantime given that putting hem outside the front window is not a good option. The solicitor says the ROW still exists (as far as can be told) therefore it should be used! It could be made clear to the neighbour, in the nicest possible way of course that IF they can prove - beyond all doubt - it no longer exists then OP will stop using it.

One of my neighbours tried to convince me that the boundary fence I was replacing was in the wrong place, despite there being very clear concrete boundary posts in place, it was only a short section of fence so I told him I would put the posts in using metposts, which could easily be moved IF he provided proof that the boundary was in fact 3 feet inside my garden! Needless to say the fence was erected and has stayed exactly where I put it. It's all about appearing to compromise, ask the neighbour for proof of their claim, but do what you are entitled to until they do.

Nobbie1967

rosyw wrote: »

It's all very well being cautious, but what is OP supposed to do with the bins in the meantime given that putting hem outside the front window is not a good option. The solicitor says the ROW still exists (as far as can be told) therefore it should be used! It could be made clear to the neighbour, in the nicest possible way of course that IF they can prove - beyond all doubt - it no longer exists then OP will stop using it.

One of my neighbours tried to convince me that the boundary fence I was replacing was in the wrong place, despite there being very clear concrete boundary posts in place, it was only a short section of fence so I told him I would put the posts in using metposts, which could easily be moved IF he provided proof that the boundary was in fact 3 feet inside my garden! Needless to say the fence was erected and has stayed exactly where I put it. It's all about appearing to compromise, ask the neighbour for proof of their claim, but do what you are entitled to until they do.

If I'm intending to live next door to someone for many years, then it's worth a little restraint for two weeks to maximise the chance of a decent relationship with them. Once the neighbour has been given a reasonable chance to back up their claim and failed is the time to start asserting the ROW. Some people just love a fight, whereas being unnecessarily reasonable leaves the neighbour with little to continue the dispute.

Land_Registry

danslenoir wrote: »

Well, a potential (and complicated) spanner in the works...

I did a bit of digging up and came across a pretty well-defined legal principle called 'unity of seisin', whereby when two properties of which one enjoys a ROW over another are acquired and owned by the same person, the ROW is automatically and permanently extinguished.

The conveyance in the title register of neighbour's property in which the ROW is stipulated was in 1954 from historical owner of neighbour property (Owner A) to another historical owner of neighbour property (Owner .

In our title register, the original conveyance referred to is on the same date from the same owner (Owner A) to another historical owner of our property (Owner C).

Given that the ROW is stipulated in this conveyance, could this mean:

(i) If the ROW predates the 1954 conveyance, that it was extinguished when Owner A acquired both properties (assuming he acquired them and was not the original builder)
(ii) The ROW was not in existence prior to this conveyance and it was Owner A who introduced it when he split his estate?
(ii) Even if the ROW was extinguished prior to the 1954 conveyance, the fact that Owner A included it in the 1954 conveyance means that it was reintroduced on that date?

Is there anyway I can check for all previous owners of the property, to try and trace down whether there have been any other joint owners since that 1954 conveyance (in which case the ROW will have almost certainly been extinguished and would be gone for good, it would seem) and trace further details on the ROW to see whether it predates that 1954 conveyance?

UPDATE: I just got an email from our solicitor who stated that the ROW is granted in that 1954 conveyance when the land was sold by Owner A. So it seems the ROW is still valid and enforceable.

However, our solicitor acknowledged the aforementioned legal principle and said she was unable to check whether there have been any other joint owners of neighbour's property and mine since that 1954 conveyance given that not all historical owners properties are listed on the title register. Is there any way I can find this information myself? It seems unlikely that there would have been any other joint owners since then, but it would be good to verify this for peace of mind because, as mentioned, if there have been then the ROW would probably be gone for good.

Whilst I would tend to agree with others re your continued digging you have added some additional detail so .......

Yes, unity of seisin can apply where the dominant (benefit of the right) and servient (subject to the right) lands come into the same ownership.

The rights are not removed automatically from the registered title unless the owner applies for them to be removed or we amalgamate the two titles and as such the right can be removed.

That does not appear to be the case here from what you have posted as the right was included in the 1954 Conveyance referred to on the servient (neighbour's) title.

So whilst a similar or identical right may have existed before the 1954 Conveyance that seems irrelevant as the 1954 Conveyance grants/reserves the right anyway. So ii) and ii) would be a Yes

I see no point in trying to check whether the properties came under one ownership since 1954 as the right is still registered and the properties are not under one ownership now.

However as you are the one doing the digging that is entirely up to you. Our records will probably include some details of the change of ownership since 1954 based in part on the list of deeds/docs lodged when each title was first registered (presumably after 1954) and then with each subsequent registered title or register edition. In order to check each detail you would need to apply by post and pay £7 for each item.

NOTE - you mentioned earlier that your own title does not refer to the benefit of the right of way so I assume that the 1954 Conveyance referred to on your title does not refer. I would guess, as impossible to know from details posted, that the conveyancing done at the time took the view that the servient right was sufficient to cover each property although historically it has always been the case that you grant/reserve rights as appropriate in each Conveyance so everything dovetails nicely.

There is also a possibility of registration error as well in that the 1954 Conveyance re your property did inc the right but it was missed - seems unlikely as the Conveyance is referred to though but I can't rule that possibility out

As this thread is drawing quite a lot of interest I would be happy to search our records to see if we hold any clues as to how the registrations evolved and give you some idea of the number of changes/documents on record.

I would however reiterate that the right is registered and whilst I understand your caution and continued digging 'peace of mind' is only likely to come through engaging with your neighbour, sharing the information and understanding you already have and agreeing a way forward

danslenoir

Land_Registry_representative wrote: »

Whilst I would tend to agree with others re your continued digging you have added some additional detail so .......

Yes, unity of seisin can apply where the dominant (benefit of the right) and servient (subject to the right) lands come into the same ownership.

The rights are not removed automatically from the registered title unless the owner applies for them to be removed or we amalgamate the two titles and as such the right can be removed.

That does not appear to be the case here from what you have posted as the right was included in the 1954 Conveyance referred to on the servient (neighbour's) title.

So whilst a similar or identical right may have existed before the 1954 Conveyance that seems irrelevant as the 1954 Conveyance grants/reserves the right anyway. So ii) and ii) would be a Yes

I see no point in trying to check whether the properties came under one ownership since 1954 as the right is still registered and the properties are not under one ownership now.

However as you are the one doing the digging that is entirely up to you. Our records will probably include some details of the change of ownership since 1954 based in part on the list of deeds/docs lodged when each title was first registered (presumably after 1954) and then with each subsequent registered title or register edition. In order to check each detail you would need to apply by post and pay £7 for each item.

NOTE - you mentioned earlier that your own title does not refer to the benefit of the right of way so I assume that the 1954 Conveyance referred to on your title does not refer. I would guess, as impossible to know from details posted, that the conveyancing done at the time took the view that the servient right was sufficient to cover each property although historically it has always been the case that you grant/reserve rights as appropriate in each Conveyance so everything dovetails nicely.

There is also a possibility of registration error as well in that the 1954 Conveyance re your property did inc the right but it was missed - seems unlikely as the Conveyance is referred to though but I can't rule that possibility out

As this thread is drawing quite a lot of interest I would be happy to search our records to see if we hold any clues as to how the registrations evolved and give you some idea of the number of changes/documents on record.

If you would like me to check then please email me at customer.service@landregistry.gsi.gov.uk

I would however reiterate that the right is registered and whilst I understand your caution and continued digging 'peace of mind' is only likely to come through engaging with your neighbour, sharing the information and understanding you already have and agreeing a way forward

Thanks.

The ROW is not mentioned on our title register. Our title register just refers to "TOGETHER with and subject to all rights of way water drainage and other rights existing at the date hereof."

Our solicitor advised that it is not uncommon for the right to appear/be explicitly detailed in one title register but not another, and that it being detailed in the neighbour's alone is still more than sufficient to make it legally binding. She also mentioned that when completing the legal work for our purchase at the end of last year, she applied to the Land Registry to have the ROW explicitly inserted into our title register and this is currently sitting with the Land Registry in-house legal team.

Solicitor has been informally advised by the Land Registry that this shouldn't be a problem and the ROW will likely either be inserted into our title register without further notice or the Land Registry will offer the neighbour an opportunity to comment or dispute this amendment.

Just to check that I understand your feedback, even if the properties came into common ownership since 1954, there is no possibility that anything could change what is currently in the neigbour's title register as of now regarding the ROW without our consent?

Yes, we fully plan on continuing to engage with neighbour to resolve this situation amicably.

rosyw

Nobbie1967 wrote: »

If I'm intending to live next door to someone for many years, then it's worth a little restraint for two weeks to maximise the chance of a decent relationship with them. Once the neighbour has been given a reasonable chance to back up their claim and failed is the time to start asserting the ROW. Some people just love a fight, whereas being unnecessarily reasonable leaves the neighbour with little to continue the dispute.

From my point of view it's not about fighting, it's about making it clear you're not a walkover In my case I have/had two bothersome neighbours, by simply being pleasant and reasonable, whilst at the same time standing my ground I have in all likelihood prevented any future disputes. One neighbour who liked to throw his weight around has now been silenced, to the relief of all concerned, the other who thought he could pinch a bit of my garden has been stopped in his tracks, I knew he couldn't prove where the boundary is (I could) the property belongs to his mother and has done for nearly 50 years and as a result is not registered with the LR, there is no bad feeling, we still stand and chat over the fence, which is in the correct place

There is no need for unpleasantness IF you know you are in the right and are prepared to stick to your guns - in a non confrontational way.