title deeds do not declare easement rights

justworriedabit

We are considering having a new fence put up. 
We are a EOT house.
We can see on our title deed and plan that we do not have access over anyones land.
However, ther is a 2 foot wide area behind and to the side of our fence coloured in
green on title plan, and the red line is on the outside of the green therefore meaning it is our land.
We have seen no one use the area.
We just bought two lots of title deeds re the house on our left and the other on our right that is not attached to us.
Looking at both of their title deeds, they have no mention of any rights of way/easement.
There is a gate on our land behind the fence and its go a lock on it we have a key.

My question is - (btw, both of the other properties were bought a good 40 years ago) as
there is no mention of easement rights on the titles of the other two properties, do they have access in a legal sense?
One on the right is in his 80's can hardly hear anything nd gets worried so we dont want to trouble him and 
it is almost the same on the other side and they are both around 90 yrs of age.

Our original, full title deeds the ones when the house was built  does state that we have a responsibly
to maintain it.  Therefore I am thinking they may have access rights but as the online title deeds only cam about 
approx 25 years it is not included.

We was hoping to move the fence back on both sides to the edge the red lines on the title plans
that would inc the green area.   However, we will drop them a simple letter nearer the time.
Many thanks in advance if you are able to help.

greatcrested

How exactly does your title document describe the green line?

How exactly does your title document describe the red line?

Have either of the neighbours actually used this area for access? If so, they may have a Prescriptive Right irrespective of the deeds.

princeofpounds

Based on what you describe, it is quite likely that someone has an easement over this pathway. That's doubly-so when you have a clause giving you explicit maintenance responsibility (which incidentally, may not be binding as a positive covenant, but that's for another day).

However, it is strange that little direct mention of it is made in your deeds or those of your immediate side neighbours. To be frank, it is worth checking more deeds to houses further down the row and behind. 

But what I suspect has happened here is that when one of the properties was registered, the easement was not properly recorded. It may exist on some paper conveyances from the past. If it was once valid, it remains valid, although evidencing that is a separate question. 

So move the fencing if you like, but be prepared to move it back on any challenge. Also be prepared for awkward questions if you try to sell the house (what did your solicitor say about it when you bought?!)

The other possibilities are that you have mis-read the title deeds, or that the symbols on the title plan are not defined and meaningless. Whilst the latter scenario is not unheard-of, I think it's very likely in this circumstance.

Oh, and greatcrested is right, prescriptive rights may also exist, although they would not normally appear in the title plan at all.

justworriedabit

Morning
Thank you both.
The deed reads re green area:
1 - the freehold land shown edged  red on plan of the above (our property). Titled filed at registers as being (address our address):
You have the green bit running along the back 2 foot wide and down the 200 length of our side of our property, ie our boundary is marked out in a red oblong and green area fall within that.
Only the people on the left have that green access on their back garden and a gate but none of the other properties.

They have not used it but did mention it when the husband was alive that it was his emergency access. They hav their garden done and fence and took it through their house not around the back,
The people on the right some detached houses, they are raided by about 2 feet higher than ours and have a separate, fenced access to their rear garden,


The orginal title deeds to our house do mention as i stated that we have to "maintain" the green area and not "obstrut"
It could be that the houses on our left were bought more than 40 years ago as the one on the right hence no mention in the shorter title number paper work.
National ordnance survey maps show that bit of green as separate as well and some of the other houses down the road.

We checked, re-read our title plans several times and that of next doors right and left side.  We have drawn around our home on the title plan a red oblong, to the righ and back within the red lines are the two green bits and we get the 'T' signs coming off the red lines to the back and right side meaning that is our fence.

Thanks for trying to help, appreciated.

justworriedabit

I've done a drawing
To the right side is a detached house which is about 2 feet higher than ours they have their own prive access down both sdes f their house ie right and left sides.
The green is the path.
The redline is our property
The 'T' are indications of our fence side.
Both the house on the left attached to ours and one to our right, nothing stated and we feel the one on the left has access but not right but a few years ago they walked down the side well family did and painted fence they said they were given the ket to the gate by the paerson that lived at our address previously

princeofpounds

Hi again, thanks for the plan. I don't really understand your post just before that, it was a bit unclear.

But I would be astonished if your neighbour did not have a right of way over this path given everything you have said. Possibly even the next neighbour on the other side of them too, given the green path appears to go along the back of your neighbour's garden too. 

This is a very normal set-up for terraced housing, so people don't need to drag garden stuff or bins through their house.

Seashell517

If I was neighbour, I would want and use that access (for bins and/or bikes). So unless you're prepared to let neighbours wonder through your garden, I'd say you need to leave your fence where it is. Oldies might not be doing so, but when they shuffle off this mortal coil and the houses get sold, the next owners could well want to use it.

greatcrested

justworriedabit said:

Morning
Thank you both.
The deed reads re green area:
1 - the freehold land shown edged  red on plan of the above (our property). Titled filed at registers as being (address our address):
You have the green bit running along the back 2 foot wide and down the 200 length of our side of our property, ie our boundary is marked out in a red oblong and green area fall within that.
Only the people on the left have that green access on their back garden and a gate but none of the other properties.
....
The orginal title deeds to our house do mention as i stated that we have to "maintain" the green area and not "obstrut"

"You have the green bit running along the back 2 foot wide and down the 200 length of our side o...." That is clearly not language used by the Land Registry.

You have not quoted whatever the LR Title says regarding the green area.

davidmcn

If it's the case that the LR have marked something on the title plan but for some reason have omitted to explain what it is elsewhere in the title, probably best you check with the LR whether that is actually an error by them (there's a LR rep on the forum who might be able to help - I can't immediately find the usual thread for them).

justworriedabit

Seashell517 said:

If I was neighbour, I would want and use that access (for bins and/or bikes). So unless you're prepared to let neighbours wonder through your garden, I'd say you need to leave your fence where it is. Oldies might not be doing so, but when they shuffle off this mortal coil and the houses get sold, the next owners could well want to use it.

It's access by foot only as per our original title deeds but it does not say who for. 
As often the case with easements like this, it is foot traffic only and 'no loitering,' i read on another site.
We will leave the fence where it is, new one will be on the same ground. The last thing we want is problems.
The detached house on the right have their own access and if the sell will will politely tell them it is our land and their title deeds do not state access.
The house on the left, though title register does no give them rights, in our judgement it may have been inc in their original deeds.

justworriedabit

greatcrested said:

justworriedabit said:

Morning
Thank you both.
The deed reads re green area:
1 - the freehold land shown edged  red on plan of the above (our property). Titled filed at registers as being (address our address):
You have the green bit running along the back 2 foot wide and down the 200 length of our side of our property, ie our boundary is marked out in a red oblong and green area fall within that.
Only the people on the left have that green access on their back garden and a gate but none of the other properties.
....
The orginal title deeds to our house do mention as i stated that we have to "maintain" the green area and not "obstrut"

"You have the green bit running along the back 2 foot wide and down the 200 length of our side o...." That is clearly not language used by the Land Registry.

You have not quoted whatever the LR Title says regarding the green area.

Item numbered one is the words they used and highlighted by me but not the bits in the brackets.