Rights of way and extinguishing

Cjsrm

Here is an interesting little story which I feel duty bound to raise
We have a house that when we purchased was identified as having a right of way over our garden for our neighbour but our conveyancing firm said it was not an issue and in fact did not mean that the neighbour had a right of way.
So we brought it. Now we come to sell, the new buyer insists on having the right of way removed and we can't blame them as we would have done the same had we been advised correctly. Here comes the science bit - our neighbour once owned both the properties for 20 or so years after the right of way came into effect. Prior to that the previous owners also owned both properties (servient and dominant it is called). In addition for 33 years the neighbour who has the ROW has not used it - did not know it was there, and allowed his family who purchased this house to build over the ROW in plain sight and with no objections. So after weeks of research and practically becoming a conveyancer myself - we are having to go through the pain of getting a deed of release even though the ROW is in effect gone.
If anyone agrees with my analysis of the situation please say so.

G_M

Well as you give no detail of the ROW, when and how it was created, who has the benefit of it , wht the exact wording is, how can we comment.


I'm also confused by your referenc to science. How does science come into it (unless those using the ROW are limited to doing so at, or above, the speed of light)?

quantumlobster

"the science bit" = pop-culture reference to shampoo adverts.

G_M

Oh dear. Must watch more TV.



Do shampoo adverts require viewers to have some sort of ROW? Or RTV?

DaftyDuck

G_M wrote: »

Oh dear. Must watch more TV.



Do shampoo adverts require viewers to have some sort of ROW? Or RTV?

Hair. They require you to have a full head of glossy locks, with which you can do the "slow flick" while a real scientist (as proven by the white lab coat) tells you why aubergine, or vitamin K, or ylang ylang are essential components. Essential! How are your follicles?

Mind you, the OP is partially correct. Simultaneous ownership of a ROW-paired property can extinguish that right. Sometimes. Not always. Depends on the state at sale, i think. I have the same benefit for a pair of Victorian terraced houses with rear access across the gardens.

But, I'm a scientist, not a lawyer or solicitor, so I will seek proper advice from a suit-wearing legal bod when I sell, and keep my stained lab coat opinions to myself.

Now dandruff... there's a shampooy thing. Dinosaurs got dandruff, apparently.... you can see why Tyrannosaurs did, tiny hands and arms, couldn't lather up that Head and Shoulders. But, we digress...:D

ProDave

So if I am reading it correctly, there is a ROW that has not been used for 30 odd years, and to exercise their right to use it, would have to pass through an extension built on the adjacent house. No doubt there is no door for them to use. Anyone seen that advert with Mo Farah running through a wall?

PasturesNew

As you say, a previous owner owned both properties at one point, which should've extinguished the right of way .....

I think the 33 years is a red herring, as a ROW is a ROW - but owning a house with a ROW to get to it, then buying the one over which the ROW passes, extinguishes the ROW.... so, unless he reinstated it upon sale, it should have just disappeared.... but only if that person was the only person who had the benefit of the original ROW (and not, say, other neighbours).

moneyistooshorttomention

I've also read that one can't give a ROW to oneself - and therefore the ROW would have gone when the owner of both houses duly built on the land.

But I can understand your buyer being ultra-cautious. I think they're being over-cautious personally in those circumstances - but it would be as well to get your solicitor to look into this and then write out a letter to them saying, in legalese, "No ROW exists any longer because of the following facts..... (quote law/caselaw/whatever is relevant") and, hopefully, that should do the trick and reassure your buyer.

unforeseen

The row was extinguished when they first came into common ownership
See https://www.gardenlaw.co.uk/phpBB2/viewtopic.php?t=1585 for a discussion by people who know what they are on about.