Deeds of release

Belle1576

we are selling our house and we were very close to setting the date for moving our buyer has turned round and said his lender wants the right of way removed. If it isn’t that’s it, the sale doesn’t go through.
We are now asking our neighbour who rents her property out if she is willing to do this but she needs to ask her lender if this is ok.
The ROW goes through a garage which was built by the previous owner of our house. We have never had a problem with this. This ROW has never been used in the 14 years we have lived here.

Also if both properties was owned by the same person does this change the right of way. As I think many many years ago it was. The properties are Victorian cottages.
Any insight or people that have been through this would be helpful, thanks

da_rule

There is a doctrine in law known as unity of seisin. This means that and easement will automatically extinguish when ownership of the dominant land (the land with the benefit of the easement) and the serviant land (the land with the burden of the easement) are unified (i.e. owned by the same person).

If the titles are then sold to differing people, the easement does not come back unless it is re-establishes by deed or prescription etc.

The problem is that the Land Registry don’t routinely check ownership of neighbouring properties when dealing with an application (why would they), and even if they did, they would be unlikely to be able to assume that two parties were one in the same even if they did have the same name. They would not want to risk extinguishing the easement based on mere assumptions as this could have implications in terms of liability.

If however, you can evidence that both pieces of land were owned by the same person at some time in the past (after the easement came into existence) then the easement is extinguished by function of law, effectivenfrom the date the land came into single ownership. The issues you may face though are:
1) Proving the people are the same, just having the same name may not suffice;
2) Proving that no other land is affected by the easement.

If you can prove that unity of seisin has occurred, you can apply to the Land Registry to make the relevant entries on the relevant titles.

davidmcn

Belle1576 wrote: »

Also if both properties was owned by the same person does this change the right of way.

When was the right of way created? I would have thought more likely that it dates from whenever the title was split.

Belle1576

Thanks I have been looking at the documents we have on the property, they were all owned by one man when built on his death 2 were given to each son, there were 4 altogether. I assume the right of way was put in place after this, but my husband thinks it would of been in place before for the coal to be stored at the back.

da_rule

If they were all owned by one person then he could not have granted an easement. You must have at least 2 separate parties to a deed which grants an easement.

Also, he would not have needed an easement as he owned the property and could therefore pass over it.