Re-routing a ROW without servient owner's permission

k12479

Newbie22FTB said:

wilfred30 said:

As you would presumably want this sorted before you buy, the Deeds for both houses would need to be changed to reflect the removal of the RoW, your solicitor would probably be duty bound to inform your mortgage lender.

Yes, it would have to all have been sorted beforehand.

I just wanted to establish the leverage in my/the seller's favour, with regards to the neighbour having already blocked their ROW  and also having built incorrectly (thus choosing the obvious, non-contentious issue of removing the ROW in exchange for their build not being reported).

Don't forget the neighbour has leverage too - they can drag this out, scuppering a sale until it's resolved. If the house is currently vacant then it'll be costing money until it's resolved or they get a new tenant in. Given they obviously want to sell for some reason, selling to a cash buyer, at a discount or to someone who's not too bothered by these details may be their most pragmatic solution.

Tiglet2

Removing or extinguishing a right of way is not straight forward, as it depends on a number of factors. It is very difficult for a right of way to be removed,  without the consent of those benefiting from it.  If you want to claim that the right of way should be revoked due to a lack of use or because it has been partially built over, this can be very difficult.  You would need to demonstrate that the purpose for the right of way no longer exists. You will also need to demonstrate that those benefiting from the right of way has agreed that they no longer have use for the right of way and agree to release the right. This would involve entering into a Deed of Release, to formally remove the right.  This would, as others have pointed out, involve solicitors drawing up the Deed for approval, submitting it to the Land Registry and the titles being updated.

If the neighbouring land has no access to it without going through the property, I would be very surprised if the neighbour agreed to signing a Deed of Release to extinguish their ROW.

Sorry, but you should look for another property.  This will come up again when you sell and could put off potential buyers.

leroyJ

Also if the neighbour has a mortgage, I believe they'll need to get the bank involved to remove the ROW?  As it would normally represent a loss in value of the property, so the bank my possibly want it to be re-mortgaged?

user1977

leroyJ said:

Also if the neighbour has a mortgage, I believe they'll need to get the bank involved to remove the ROW?  As it would normally represent a loss in value of the property, so the bank my possibly want it to be re-mortgaged?

I doubt the loss of the ROW will make any material difference in value, they'll be more concerned about the encroachment over the boundary.

leroyJ

user1977 said:

leroyJ said:

Also if the neighbour has a mortgage, I believe they'll need to get the bank involved to remove the ROW?  As it would normally represent a loss in value of the property, so the bank my possibly want it to be re-mortgaged?

I doubt the loss of the ROW will make any material difference in value, they'll be more concerned about the encroachment over the boundary.

Well yes, but I imagine the neighbours will keep that quiet from their bank, especially if the extension doesn't have proper certification.  I.e. they'd have no reason to tell their bank about the encroachment, but they'd still have to tell them about removing the ROW.

Titus_Wadd

OP have you spoken with your solicitor about the likely options?  I'm assuming the house you want to buy is now vacant; if it still has a tenant that's a whole new layer of madness best avoided.

You currently don't have any bargaining power with the neighbour, only the vendor.  If the vendor can't or won't get into a dispute to settle this before you buy you'll have to look for something else.  You could lower your offer but the vendors don't have to accept it.  If you approach the neighbour, as a prospective buyer of the servient land, nothing you agree will be binding until you're the owner.  The neighbour could agree to enter into a trade-off of land pinched by their extension against extinguishing the RoW once the house is conveyed to you.  If they change their mind, you'd be looking at expensive action to tackle the encroaching extension.  Now, the vendor will probably hit this problem with any buyer once they notice the extension and the RoW question.  They may find a string of offers get withdrawn, but starting negotiations with the neighbour may not be worth their hassle in time and money if they want to move, so they might just drop the price until it sells to someone who doesn't care or see it as a problem. 

If the vendor manages to sort this quickly I'd be very surprised, if it becomes your problem, when the house is conveyed to you, you will instantly be in a dispute with your neighbour...not a great start if your intend to stay alongside them and a bother should you want to sell in a few years' time.

Personally I'd never buy another house with a right of way (dominant or servient owner), it's too messy and expensive if you find yourself in dispute.  We're not talking a few grand/few weeks to sort it; currently we are looking at £50k to start proceedings for an emergency injunction to restore our RoW access which has been "interfered with" for two years, then an on-going action.

In its current confusing state it seems a terrible buy to me!  Look at Righmove etc again and find somewhere straight forward to buy, you can leave your offer on the other house but I'd want the whole sh!tshow sorted first.

Norman_Castle

Newbie22FTB said:

The reason I ask is because I am looking to purchase a property which has the burden of the ROW, as the servient tenement.  The neighbour with the ROW built an extension and, as a result, moved their ROW further down the garden, to a different location than is shown on the deeds. Are they allowed to do this? 

How have they moved it? Have they put a gate in the fence different to where the row is? If a row is obstructed they can bypass the obstruction but I doubt they can obstruct it themselves then reroute. I'd expect a court would instruct them to remove their obstruction if they want access.

I'd leave this to the seller to resolve.

Norman_Castle

Newbie22FTB said:

They've not even moved into the property yet as have been renovating it for the past year. They say they intend to use it and rejected the suggestion of extinguishing it.

Buy another house. You don't want the row and they're not letting go of it. Why buy into an argument?

sheramber

On the plan it looks like they pass close to the rear of the house and then down the side of the house to the road.

As said they could access from the extension  to the existing row. Would you prefer that  to access further away from the house.?

Would it not be preferable to have them walking across further down the garden, away from the house.

Personally, I would prefer they accessed at the bottom of the garden and then up the side, avoiding the  rest of the garden.

GDB2222

Newbie22FTB said:

I guess I'm not seeing it as a "dispute" at present. More of a potential compromise/solution?

I am afraid that the neighbours won’t look at it like that. They feel that they have done nothing wrong. They have permission for the 9”, admittedly from the wrong person, and they absolutely need the ROW. So, from their point of view, you are coming into this situation, threatening them with legal sanctions over the extension unless they give up their very important ROW. 

They will regard it as blackmail. At best, relations will be very difficult. At worst, the neighbours will get more and more resentful as they cart stuff through the house, until it turns into a full blown dispute.