Is granting "Right of way" equivalent to adjusting boundaries of the property?

Maverickon

Hello,
Is granting "Right of way" over a driveway equivalent to adjusting boundaries of the property ? Couple of years back, I bought a new built house which has a driveway. the driveway is required by the neighbour to access their garage.  Last year we realised the neighbour was not granted a "right of way"   on the driveway and even our deed does not show that. This was verified by a solicitor. We reported this to developer. We were OK to provide the right of way but the developer is asking more than required and is pointing to a clause in the contract that states the "Seller may need to make adjustments to the boundaries of the property but these will not significantly alter its area or value and the Buyer confirm it will assist the Seller by entering into any deed varying the original Contract/Transfer plan as necessary".

My question is granting "Right of way" equivalent to adjusting boundaries? Any help will be appreciated.

greatcrested

No. They are two different things.

The boundary shows who owns the land.

The ROW grants another person access over land they do not own.

Have you checked the boundaries of your and your neighbor's properties via the LR Title Plans?

Rather than hand over part of your land I'd grant a ROW, along with a Deed requiring the neighbour to contribute to any maintenance costs.

Maverickon

Hello greatcrested,
Thank you for the reply. We checked the LR Title plans for our and neighbor's properties. Both the plans do not show right of way. This was confirmed by a solicitor as well.  As I said in my post, I am OK to grant the right of way to access their garage. But what the developer is asking in addition to this , is a right to use an unallocated parking space that is alongside/part of the driveway. The developer says it "needs to stay unallocated" as per the planning requirements and forcing us to give right of way to the neighbour on this space as well.  

mrschaucer

Surely if the space is to be "unallocated" then everyone has the right to park in it.  That means your giving the world and his wife ROW over your  land ...

princeofpounds

Hi Maverickon.

Do not agree to anything until you know your exact legal position. This is really important stuff and you shouldn't let the developer bully you into anything to fix their mistake.

Greatcrested is right, the boundary shows who owns what land. A right of way 'easement' is simply a right awarded to another property to give some kind of access over that land they do not own. They are entirely separate issues.The right to park is also a separate matter to the right of way, just to be clear; if you decide to award one, it does not mean you have to award the other.

A question - what exactly is your status here - you have completed on the purchase of your own property some months ago yes? The neighbouring property - has this also been sold already or does the developer still own it?

These rights are very valuable. Regardless of the intentions of the developer, you bought the property unencumbered by these rights, and you should not give them away without good reason. People will often pay thousands of pounds for rights like these over neighbouring land - I am not telling you this to promote the idea of trying to wring money out of the situation, I am telling you this to drive home how important the situation is.

You have three potential paths forward:

1. Refuse any kind of change. If successful, you enjoy a property without encumbrances. It will be worth noticeably more, and you won't have to share a driveway day-to-day for either parking or access.

You will not be popular with the developer and/or your neighbour (depending on who owns it now), but that may not matter at all (and should not in the case of the developer at least).

You may find they threaten or actually try legal action to force a change. This may or may not be a good case. They might try to use this clause you highlight, or they may try to claim an 'implied' easement by 'necessity' or 'implication'. The latter basically means they claim it is so crucial and obvious that the access needs to be there the law cannot object. There is a very high and technical bar for this, and the mere fact that a driveway is in place does not mean they would win.

As for the clause the developer is pointing towards, I'm not sure it obliges you to do anything at all with regards to this problem; certainly don't assume it does without legal advice. I suspect they are claiming that if you don't award the ROW over your land, they will try to take that land away from you instead. This would significantly alter the area and value of the property and so they may well not have that right. I'm not even sure if they could force you to vary the original deal now even if it wasn't the case.

The other angle they may pursue is pinning the planning violation on you. That is not straightforward; just because there may be a planning violation does not mean that it is necessarily your responsibility to solve it. It's a complex matter that depends on the details of the case. Before you take their word that there really would be a planning issue, you should find out firsthand; don't believe anything they say without verification. Even if it does mandate a parking space, it probably doesn't mandate that it belongs to a different house.

2. Accept some or all of the changes, but only for a price. For the reasons I mentioned, you may not fancy defending your unencumbered property even if they have no case and you win. It may be a hassle not worth the end result.

However, if you provide at least some level of resistance, but make it clear that the carrot will work where the stick might not, you may be able to get something in return for all of this. That could be money, or it could be a settlement where you agree to access but not parking, or for them to fund 100% of the maintenance costs, or something else altogether; it depends what can be negotiated. 

3. Accept the changes out of goodwill for your neighbour/developer. You may feel that morally this is what you want to do, and although I would argue you have no moral responsibility to the developer (believe me, they would not have one to you), you may feel differently in terms of neighbour relations.

Two important points here - at the very least, the developer and/or your neighbour should be contributing to your legal advice. This was not your mistake, and even if you want to take on the burden of the encumbrances to correct it, you shouldn't have to pay for the legal process or to understand your rights vs. your obligations. Have they offered to do something like this? Do not accept any solicitors recommended by them, you need someone on your side.

The other issue that this also affects your mortgage lender, if you have one. Almost certainly you will have to consult with them over any changes to the title, and they will have to agree with you on the best course of action. 

-> If it was me, I'd be pushing for some version of option 2 most likely. But that's a personal choice that depends on a number of assumptions.

I would be particularly keen to defend my own exclusive parking space - that's worth a huge amount.

ProDave

If I understand this, YOU own the drive, you can access your property.

Your neighbour does not own the drive and has no right of way over it to access his land.

It is your neighbour that has a problem that needs resolving, not you, and it is your neighbour that needs to be discussing this with the developer.

the developer may alter the boundaries thing is to allow them to move fence positions if needed. I know someone that ended up with a massive back garden when the developer failed to get permission for a couple more houses so that bit of land was then just divided up and the whole row got enlarged gardens.

Maverickon

Hello PrinceofPounds,
Thank you for the detailed response. 
1) Both houses have been sold. 
2) It seems that the neighbour had approached the council over the unallocated parking space. The council said they will not be involved as the unallocated parking space is on private land.
3)   I have been chasing the developer for 2 years on this matter, when in fact the neighbour needs the right of way more than I do.So far I have not blocked them from using the driveway. We are OK to provide ROW on the driveway, that has been our stand from day one. All this time developer agreed to this and now they come back asking ROW over the unallocated space.
4) All the communication with the developer is going through our conveyance solicitor. This the same solicitor who acted on our behalf during the purchase. However the firm was recommended by the developer ( during the purchase) and we are losing confidence in them. So it looks like we need to consult someone ? Can we force the current solicitor and/or developer to re-imburse the cost if we use another solicitor ? Is there a way this can be done?
5) We do not have good relations with the neighbour. the developer kept changing the draft of "deed of rectification" and every time they made a mistake it stressed us a lot as the neighbour used that as a tool to harass us. We reported this to our conveyance solicitor but they haven't helped us.We have not signed/agreed to any changes yet.
 

Wanderingpomm

So in theory you could use the parking space as you are the only one with access to it? I’d at least want to share it. Parking is valuable and you don’t want to set a precedent that it belongs to the neighbour as you have no idea what may happen in the future 

gwynlas

You should check your household insurance in order to see if it will make a contribution to legal costs but it would be better for you to have a truly independant solicitor. You also need to inform your mortgage lender as this will affect the value of your property.
Do you know if your neighbour used the same solicitor as they should have been aware of access issues to garage?
Granting a ROW to neighbour who probably cannot park modern car in garage might set you up for problems in the future when your neighbour sells, there are numerous threads on the forum about shared driveways or ROW..
If the garage is in fact a storage shed does the neighbour have pedestrian access from their house?
What happens in the future when you might have a number of vehicles in the household  the road is full and you want to park on your drive do you want to move several vehicles so that your neighbour can access their garage?
If you allow a vehicular ROW this will disbar you from parking your vehicle off road when on holiday for example.
Your neighbours argument should be with the developer who should reimburse him for the loss of value of garage and off road parking.

princeofpounds

1) OK. So at root this is a legal dispute/negotiation between yourselves and your neighbour. Your developer should not be involved, except indirectly that your neighbour may have rights over the developer, who in turn may have rights over you. That is not at all clear at this stage, and won't be until you get good advice.

2) Great. On the face of it, that would seem to take the pressure off any idea of planning enforcement (although it's not conclusive). So unless you are forced to do so through some kind of legal process, why on earth would you give up a right to park?

3) Why on earth have you been chasing the developers? You do realise that you have just been chasing someone to take your rights away from you? Why not chase burglars to come relieve you of some of your property? (OK, I exaggerate, but you get the point). 

4) Stop using this solicitor. They have a potential conflict of interest at two levels (developer and probably the neighbour too), and I'm not surprised you are losing confidence. This is not a simple conveyancing task, which is probably all they are set up to do. At the very least find a dispute specialist and go for an initial consultation; it will likely be free. You cannot force the current solicitor or the developer to re-imburse your costs, but you can refuse to co-operate until the developer or your neighbour 

5) I was quite open to the idea of requiring minimal compensation in signing away your rights, to be cordial with your neighbour. But is he is not cordial with you, why the motivation?

By the way, you don't have to rush. You don't lose anything from delay, and the neighbour is only using the driveway under license currently. Get better advice and consider your position.

Maverickon

Thank you all for the replies.
@gwynlas
Neighbour has a designated parking bay in front of their garage and the only way they can access their parking bay is over my driveway.