Buying a house with right of way issue

7ames101

I've had an offer accepted on a house and gone some way down the process of buying, only to have a couple of right of way issues come up. It's best to note a few things of the general situation:

(1) The vendor is selling on behalf of an elderly relative who has gone into care and is in no condition to be involved or discuss any queries, so there's been a fair bit of "don't know" about questions, understandably. Their relative was first and only owner of the property (since it was built in 1962).

(2) The neighbouring property is a HMO. I've checked with Land Registry to find details of the owner, which is a local property company.

Below is the illustration from the deeds. The dark grey is the pathway (or what should be the pathway) along the side of the neighbouring property, and then across their rear garden, leading to the rear garden of the property I'm looking to buy.

The deeds state: "A right... of foot and barrow way over and along the pathway... to and from the property hereby transfered from and to [name of the street at the front]"

Issues:

(1) There is a side gate on the neighbouring property, currently bolted halfway up the inside. This is inaccessible from the front.

I've researched this and understand hopefully it should just be a conversation pointing out a need to change it to an accessible bolt higher up or, better, a lock which I have a key to. However the vendor has ticked "No" on the forms to 8.3 "Has anyone taken steps to prevent access to the property..."

(2) If you see the "top left" of each property is shown as open-back. This is an area with a concrete floor, a room above, and walls to 3 sides, but they were not built with any rear doors or wall, were open to the garden, a sort of semi-sheltered storage area.  At some point prior to 2013 (property details online from when it was sold in 2013 show it like this), this area in the neighbouring property had converted into a kitchen and patio-style doors were installed which open outwards. To fit the patio doors, they've removed pathway to that width, lowered the ground and installed decking. This means...

(A) There is a distinct step down from my garden onto the decking and then a distinct step up from the decking to what's left of the old pathway. So more difficult than it used to be for wheeling a barrow along, maybe impossible with a heavy load unless some ramp of wood is put down each time I need to use it.

(B) If one or both patio doors are open, they largely block the right of way.

The vendor has completed Section 2 Disputes and Complaints where it asks "Is the seller aware of anything which might lead to a dispute about the property or a property nearby?" they have answered "No".

I'm not too worried about resolving the side access; Of course the owner could be difficult to get in touch with and/or be uncooperative but if it comes to having to take legal action the law is clear on this sort of issue.

I'm also not (for my own use) too worried about the change to the pathway. Fundamentally, I'd be buying it knowing that's the situation. On the rare occasion I might use a barrow or garden waste wheelie bin I can always put a plank down (or across) as a ramp. If the patio doors are open I can ask to close for a moment as I pass. Hopefully not a big deal! Arguably it'd only be through goodwill/permission I could have any contractor come through, and I don't suppose they'd struggle to traverse it either. BUT... I am wondering about any ramifications to a future resale that the right on the deeds can't be exercised with the same convenience as originally intended and secondly if I was selling, in good conscience I'd have to wonder if the "Possible disputes" shouldn't be a "Yes".

I have raised it with my solicitor. She's contacted the vendor's solicitor about it, mostly I believe the concern as to whether the elderly owner at any point might've signed something waiving a right of way or formally agreeing to the change to the footpath, but in the meantime I'd really appreciate any thoughts if anyone has experienced anything like this, or on the principal that the right in the deeds can't be exercised as conveniently as it originally would've been. Thanks in advance

greatcrested

Is thisthe only acess to your garden/rear other than going through the house? If so, you may find you want/need to use it more than the current owner appears to have done.

Ultimately you have legal rights, but resorting to he courts is always expensive and stressful. Resolving amicably with neighbours is best.

If the neighbour were an owner/occupier, a knock on the door, friendly chat, and you might find there is no issue. ("Yes of course we can put a lock on and give you a key, and yes, we'll put a permenant rampeach sideof the decking")

However in this case it's an HMO. The tenants are unlikely to want /be able to alter the lock/bolt situation,or indeed the step at the rear, so you'd need to negotiate with the owner/property company - and they might be more formal in their response eg refer it to their legaldept, possibly raise objections.

One option would be to insist your seller write to the property company and get thigs resolved before you Exchange. That might take time/delay the purchase, though obviously depends how the company respods.

lincroft1710

This will never be resolved easily even if "right" is on your side. I doubt that ROW has been used for years...

Either accept you may never reclaim that ROW or walk away. It is a very stupid place to put a ROW, much more sensible across bottom of garden 

welshmoneylover

I would walk away ; ROW create problems 

pinkshoes

As you have spent money so far... I would now request in writing from the owner of the next door property that the gate bolt is changed so that you have access and that the ROW is cleared so that you can easily access your garden.

I assume you will have a wheelie bin in your garden that will need bringing to the front on a fortnightly basis to be emptied??

Believe me... when you do any garden work you do not want to be passing/carrying grass cuttings etc... through your house.

If the owner refuses, then I would walk away or accept no access this way to the garden.

7ames101

greatcrested said:

Is thisthe only acess to your garden/rear other than going through the house?

Yes, but these houses are a little different to what might be expected. They're 3 storey and with a ground floor which is quite utilitarian, comprising: A small entrance hall, a wc, an integrated garage (which runs the full length of the property, front to back), and the semi-sheltered storage area. A door could be put in the back of the garage if it came to a need to do that.

Ultimately you have legal rights, but resorting to he courts is always expensive and stressful. Resolving amicably with neighbours is best. Yes, totally agree, but good to be reminded

One option would be to insist your seller write to the property company and get thigs resolved before you Exchange. That might take time/delay the purchase, though obviously depends how the company respods.

Thanks, that's a good option! I'm not really on any strict time deadline, the FTB of my current place is not in a big hurry, the only thing I really have in mind is the stamp duty deadline, although of course now there's a fair bit of breathing space on that.

lincroft1710 said:

This will never be resolved easily even if "right" is on your side. I doubt that ROW has been used for years...
No, I imagine not. Although just technically speaking, it wouldn't "expire" from lack of use, as I understand it. My only concern along these lines is whether at some point the elderly owner might've signed something agreeing to limited use. On the other hand the garden wall between the properties has an open archway at present, not even a gate, so there's no sign of the neighbour trying to close it off.
Either accept you may never reclaim that ROW or walk away. It is a very stupid place to put a ROW, much more sensible across bottom of garden Yes absolutely agree, it's not like they're even very long gardens. 

pinkshoes said:

As you have spent money so far... I would now request in writing from the owner of the next door property that the gate bolt is changed so that you have access and that the ROW is cleared so that you can easily access your garden. Thank you, would you think this is most appropriately something I should request the vendor tries to obtain, or that I should pursue myself (prior to completion)?

I assume you will have a wheelie bin in your garden that will need bringing to the front on a fortnightly basis to be emptied?? Both this property and the neighbour leave all their bins at the end of the side path, which would suit me well enough (and for the neighbour means no need to have me walking them back and forwards through their garden)

Believe me... when you do any garden work you do not want to be passing/carrying grass cuttings etc... through your house. At present, it's basically all paved, and no trees, just some overgrown shrubs/creepers, although I would like to look at breaking that up and replacing with some sort of lawn. As mentioned in reply to greatcrested, it is unusual here in that the ground floor isn't really part of the living accommodation, it's basically just utilitarian, and I could put a door in the back of the integrated garage to take anything from and to the front of the house... The only thing which means that's not just a "no brainer" is that ideally I'd like to convert the garage into an office / guest bedroom some day, but it is an option.  

Thank you to everyone who has replied

A few further thoughts/responses in bold where quoting.

My apologies I didn't mention earlier a bit more about the nature of the ground floor, I'm sure that would've meant some answers would've suggested the option to put a door in the rear of the integrated garage and/or that the spartan style of the ground floor means it's not the worst option to just walk things through.

My only real lingering concern is for possible resale. I could figure "Well it doesn't bother me that much, presumably there'll be other people who won't be too bothered" but it must affect the value (1) to face a potential dispute over reestablishing unrestricted access and (2) if it's not reasonably possible to do so. Which leads to the question: Considering the options there are to work around the problem (if the worst comes to the worst), if you were the buyer would you maybe propose an allowance or price reduction? If so, what sort of ballpark figure? The property is around £350k value in present condition (I'm paying a bit less than that because in a good position to proceed and the property has been on the market a while).

Jeepers_Creepers

Hi 7ames.

The neighbouring property has added not only decking to that path but also all sorts of plant troughs, raised tables, garden hose reel... I suspect quite strongly that even if they 'accept' your RoW entitlement - as they should and must - they are not going to 'like' it very much, and you'll also feel a bit awkward using it - a lot more so than if this had been left entirely as an access path. They are using it for more than a path. It's likely got to the stage where these folks now feel some sort of (unjustified) entitlement or ownership of it - ie, whilst they understand the true situation, they won't be happy about it. And if there's any sense of this coming across - if you need to get something over their decking and they have to start clearing away toys, tables chairs, whatever, then it's going to be slightly cringy; even a little *sigh* from them as they do this is going to be uncomfortable.

And what if anything you need to wheel down that path is wider than the narrowed space they've left - how pleasant will it be for you to ask them to move all their plants and trestle tables?

I think I would only proceed with this purchase if I could be certain of two things - one is a written acknowledgement from the neighb that they understand and accept the conditions of the RoW, so that should act as reminder to them that even if the previous owner never used it, the new one might and will. And this should also clarify to you that there wasn't even a verbal agreement between them and the previous owner about not having this RoW. Ie - this letter should fully (re)assert your rights to the RoW and make the situation very clear. 

And the other is, I'd be planning to use that courtyard and have fully accessible doorways through the ground floor to the front. Ie, as much as I'd be permitted to use that path, I just wouldn't want to on a remotely daily or weekly basis unless it was really necessary - eg for bringing in building materials or whatever. I would want my own personal direct access to the rear. I think I would also factor in some of that cost into my offer, or if the house is a bit of a bargain, at least make sure I had surplus money to enable to happen.

I think that would also deal with any resale issues; you'd have the double benefit of direct access to this courtyard (which you will make awesome) coupled with the right of access over that path when it's needed. I think that's the ideal scenario for anybody.

Davesnave

Another option would be to alter the deeds for both properties to move the RoW to the end of the gardens.

Our vendor and the neighbour had already done this for a vehicular route, but failed to do the legals, so we insisted through our solicitor that situation was rectified before we purchased.

davidmcn

OP, would this be exercising you less if there wasn't even a right in the deeds? Lots of midterraced houses don't have external access to the back garden, and are still eminently marketable. I wouldn't say it was a neighbour dispute until somebody pokes the neighbours to check their attitude to access being exercised. 

lincroft1710

If the ground floor is "utilitarian" then use it if it won't cause too much mess or better put a door in the back wall of the garage. Then you and any future owner won't need to bother with this rather contentious ROW.

7ames101

Jeepers_Creepers said:

The neighbouring property has added not only decking to that path but also all sorts of plant troughs, raised tables, garden hose reel... I suspect quite strongly that even if they 'accept' your RoW entitlement - as they should and must - they are not going to 'like' it very much, and you'll also feel a bit awkward using it  Apologies I did not label the photos to advise: The one on the left is from 2013 (previous sale) and the one on the right is from present day. Present day there's nothing on the path (except, at the time of the photo, a bike).

I think I would only proceed with this purchase if I could be certain of two things - one is a written acknowledgement from the neighb that they understand and accept the conditions of the RoW, so that should act as reminder to them that even if the previous owner never used it, the new one might and will. And this should also clarify to you that there wasn't even a verbal agreement between them and the previous owner about not having this RoW. Ie - this letter should fully (re)assert your rights to the RoW and make the situation very clear.  Thanks, yes this seems a good way to go with it!

And the other is, I'd be planning to use that courtyard and have fully accessible doorways through the ground floor to the front. Ie, as much as I'd be permitted to use that path, I just wouldn't want to on a remotely daily or weekly basis unless it was really necessary - eg for bringing in building materials or whatever. I would want my own personal direct access to the rear. I think I would also factor in some of that cost into my offer, or if the house is a bit of a bargain, at least make sure I had surplus money to enable to happen.

I think that would also deal with any resale issues; you'd have the double benefit of direct access to this courtyard (which you will make awesome) coupled with the right of access over that path when it's needed. I think that's the ideal scenario for anybody. Yes to this as well, the more I thought about that option, the more it seems right. Even if the garage ends up as an occasional-use guest bedroom or a home office, that'll work fine.

Davesnave said:

Another option would be to alter the deeds for both properties to move the RoW to the end of the gardens. Thanks, yes I believe I'll mention this as an option for them, it would solve a few of the issues.

davidmcn said:

OP, would this be exercising you less if there wasn't even a right in the deeds? Lots of midterraced houses don't have external access to the back garden, and are still eminently marketable.  Exercising meaning like bothering/concerning? If so, quite honestly, yes. I can live with it in a practical sense, which I won't lose sight of. I am mostly wary of the fact the deeds right is somewhat "compromised" and whether there's a loss of value if a right of way like this is lost.

I wouldn't say it was a neighbour dispute until somebody pokes the neighbours to check their attitude to access being exercised. More of a "potential dispute" really, but I'll see what solicitor thinks with that.

Thanks for all the further comments and thoughts!