Building extension and using neighbouring path - whether / how to get easement?

stouffah

Hi all

Hoping somebody has experience / knowledge regarding this issue...  I can't seem to find much online!

We're looking at extending the back of our house, and due to the narrow garden it would need to fill the whole width of the garden to be worthwhile. The problem is this would cut off the access we currently have round the side of the house to the back garden, meaning wheelbarrows and lawnmowers would be going through the house...

The neighbouring house is divided into upper and lower flats, with the back garden also divided into two. Immediately adjoining our garden is a path which allows the upper flat residents to access their garden, and which runs alongside our house. It therefore occurred to us that if we could build a gate from our back garden onto this path, we could retain back garden access when we need it.

So the question is how to get permission to use the path. We've spoken to a builder and two architects, who recommended simply going ahead and building the extension with a gate and using the path. This seems strange to me, though- we're on good terms with the neighbours and I think we'd be able to agree this, but there's no guarantee in the future if, say, new people move in and are unhappy with us using the path. I would think it would also affect the value of the house in future, if back garden access isn't guaranteed (is this something that solicitors might query?). I wondered if the builder and architects were keen on going ahead just because they wanted the job without complications....

The alternative seems to be getting a formal easement written into the title deeds- i.e. a permanent right to use the neighbouring path. Does anyone have experience of getting this? It seems to be an expensive process because (I think) solicitors need to be involved, and of course we'd need to pay a certain amount to get the easement- I have no idea what the value of this kind of access would be, though.

Can anyone advise on what the best procedure here would be? Interestingly, other houses in a similar situation on our road already have gates further back and are using the neighbouring paths- we've asked a couple of owners about this and they don't know about any easement arrangements, so I guess this was done years ago.

thearchitect

If your extension is more-or-less tight to the property boundaries (the foundations scarcements require to be on your own land) then do bear in mind that (a) you will require the neighbours to agree for access for construction and (b) any future maintenance to be taken from their property.  Assuming that you are in England then you might be about to arrive in Party Wall territory, for good measure.

greatcrested

There are 2options:

* informal agreement with the neighbours, ideally all of them ie both flat owners + freeholder tat you can use their path. This consent could e withdrawn at any time though, either by one or moreof them,or by a new owner if a flat were to be sold.

* a permenant easement registered against all the itles (yours, the freehold next door, and the relevant leasehold next door). Again you'd need all their consents. They'd probably have to obtain consent from any mortgage lender involved. You'd probably have to pay all their legal fees, possibly to amend their lease(s), and to register the easements with the LR. They might also want compensation for losing sole use of the path, and the possibility that that would reduce the value of their property.

You could check the property Titles of some of the other properties in the street to see if easements do exist - often owners are very ignorant of what they own!

stouffah

Thank you both!

Yes, it's looking like a complicated process- I think party walls would indeed be a factor too...

Do you know if there's any sort of standard/expected value for compensation? In principle the flat residents (who are leaseholders) aren't really losing anything, because the upper flat residents need the path to be accessible in any case- therefore we wouldn't be stopping any extension plans on the other side. However, we would ultimately be dependent on the permission of them and the freeholder.

Also, do you have any views on what our builder and architects suggested- simply going ahead without permission? It seemed a really weird idea to me- they didn't even talk about getting informal permission, just literally building a gate and using the path. As I said, we do get on with our neighbours, but I don't know how well that would last if we started coming up their path with a lawn mower without warning...

I had a look at the property titles for the neighbouring flats in case there were any existing easements that could avoid the whole process... interestingly, I couldn't see any mentioned, even between the flats. Logically though there must be an agreement, because the path belongs to the lower flat but is used by the residents of the upper one. Can there be easements that don't appear in the Title Registers?

davidmcn

stouffah said:

I had a look at the property titles for the neighbouring flats in case there were any existing easements that could avoid the whole process... interestingly, I couldn't see any mentioned, even between the flats. Logically though there must be an agreement, because the path belongs to the lower flat but is used by the residents of the upper one. Can there be easements that don't appear in the Title Registers?

Their rights will be ancillary rights under their leases rather than easements.

thearchitect

Going ahead without permission carries the risk that you have identified, should they (or subsequent owners/tenants) be disinclined to allow such access.

stouffah

davidmcn said:

Their rights will be ancillary rights under their leases rather than easements.

Ah, thank you! I was hoping for something I'd missed that might be some more general right of access for neighbouring houses, but I guess that was too optimistic...

In fact, due to the odd angle of our house, we already use a very small amount of the neighbouring path- there's only about 50cm between the back corner of our house and the edge of our land, so with a wheelbarrow we inevitably stray a bit over the line. Even without an extension, we'd be stuck if they did ever build a fence along that border. I really should have thought through the consequences when buying the house!

[Deleted User]

Would it not be less difficult and expensive to build a slightly smaller extension, so access on your land is still possible. Or extend it lengthways by another half meter to make up some of the lost space. Consult an architect, still less expensive than paying neighbours legal fees for multiple issues. Or have a hallway from front to back. Or just take a wheelbarrow through the house lol.  How often would you need to in reality?

greatcrested

Just going ahead as suggested by the builders risks putting your neigbours' backs up. I know in their position I'd think "What a bl**dy liberty" and take action to stop you.

Whereas if you popped round with a nice home-made cake, chatted about your problem, I'd be more than likely to facilitate you provided I was not put to expense or losing out in any way.

Ozzuk

Doing it without an agreement the risk is entirely on your side and potentially tresspass.
Also, it is difficult to see why they would grant this - there is nothing but down side to them, loss of privacy, loss of security (if they put a gate in that they want to lock you'd likely complain).  If they did agree they would need permission from their lender (if one exists), and they'd likely want you to pay their fees, could easily be 2k+ in fees.
Lots of hoops to jump through on this one to the extend you may be better off amending your plans.

Alternatively, if the value loss of reducing extension is comparable, maybe offer say 3k for easement with additional money for fees capped at 2k - so 5k total - incentivise them to take your offer.

stouffah

deannatrois said:

Would it not be less difficult and expensive to build a slightly smaller extension, so access on your land is still possible. Or extend it lengthways by another half meter to make up some of the lost space. Consult an architect, still less expensive than paying neighbours legal fees for multiple issues. Or have a hallway from front to back. Or just take a wheelbarrow through the house lol.  How often would you need to in reality?

Yeah, I will have a look again. The main issue is just that the narrowness / angle means the extension already looks pretty squeezed, and leaving a path would chop quite a bit more off it.
Apart from the hassle of taking things through the house (we have a front lawn as well so there's a reasonable amount of movement back and forward), I have got half an eye on future selling potential as well. I reckon it'd be a dealbreaker for quite a few people...