Re-routing a ROW without servient owner's permission

Newbie22FTB

Wow - thank you all so much for your really thoughtful replies and advice. It's definitely made me see things a bit more clearly.

I'm going to leave the seller to negotiate the removal of the ROW. If they can manage it, great. If not, no sale. In the meantime, I've reinstated all my house-hunting apps and shall continue to search for another house which does not have the burden of a ROW. If I have a positive outcome re the ROW, I'll update

Thank you again!

Soot2006

Newbie22FTB said:

Wow - thank you all so much for your really thoughtful replies and advice. It's definitely made me see things a bit more clearly.

I'm going to leave the seller to negotiate the removal of the ROW. If they can manage it, great. If not, no sale. In the meantime, I've reinstated all my house-hunting apps and shall continue to search for another house which does not have the burden of a ROW. If I have a positive outcome re the ROW, I'll update

Thank you again!

I think a good decision. you may well find another house you love just as much without such concerns!

TripleH

If the right of way is a 'specified area' in the title deeds then isn't that all the owner of a property needs to ensure is accessible?

If the beneficiaries of a right of way obstruct this ROW then that falls on them?

As long as the designated ROW is unobstructed then there is no breach?

I guess the details are in the wording of the document.

I was a beneficiary of a ROW at University. The house I lived in granted me a path from my back door across my 2 neighbours' properties, I'd never have dreamed about going beyond the path into either house's back garden.

A minefield none the less.

Newbie22FTB

Hi everyone, 

Just to say that I'm in the last few weeks of my mortgage offer, before it expires. Since I last posted, the vendor has instructed a litigation solicitor, who will also offer the neighbour the chance to compromise by surrendering the ROW, in exchange for not being sued for having extended their house without serving the correct Party Wall notice to the vendor (only to previous tenant).

My "last chance saloon" question is, IF the vendor does manage to succeed in having the neighbour agree to extinguish the ROW from the deeds, given I only have a matter of 5 weeks left, and knowing that land registry may not be quick to change the deeds (and neighbour's mortgage lender having to be notified of same, I think) what is the BEST CASE scenario for me to ensure that even if it isn't all deed-recorded, that it can be written into the conditions of sale of my property and completion?

Basically, I don't want there to be an opportunity for the neighbour to retract their agreement to surrender the ROW once the sale completes, accounting for the fact that the deeds (assuming they take longer to officiate) haven't reflected the change and agreement. Is there a legally binding way to ensure they follow through?

Also, lastly, is the Party Wall stuff likely to cause me future problems? I wouldn't report them for their extension, as I don't feel I'll have lost anything as I haven't moved in, and I just want ROW gone. But, as there is now a party wall that is astride the boundary, can they create any difficulties for me should I ever want to create an extension myself in the future?

Thanks so much. I have been looking for other houses, but nothing suitable has come along, so I'm just letting this particular one run its course till mortgage offer expires and hoping for the best.

xx

propertyrental

Whilst there is a legal obligation for a Party Wall notice to be served, regrettably  no claim can be made as a result of a failure to serve one.
Where a PW Notice is not served, the remedy is to apply for an injunction stopping construction, but this can obviously only be done prior to, or during, the construction process.
Once work is complete there is no opportunity for any further remedy under the PW Act. Of course it's still possible to sue for any actual damage caused, assuming there is sufficient evidence.

The Act contains no enforcement procedures for failure to serve a notice. However, if you start work without having first given notice in the proper way, Adjoining Owners may seek to stop your work through a court injunction or seek other legal redress.

https://www.gov.uk/government/publications/preventing-and-resolving-disputes-in-relation-to-party-walls/the-party-wall-etc-act-1996-explanatory-booklet

Newbie22FTB

propertyrental said:

Whilst there is a legal obligation for a Party Wall notice to be served, regrettably  no claim can be made as a result of a failure to serve one.
Where a PW Notice is not served, the remedy is to apply for an injunction stopping construction, but this can obviously only be done prior to, or during, the construction process.
Once work is complete there is no opportunity for any further remedy under the PW Act. Of course it's still possible to sue for any actual damage caused, assuming there is sufficient evidence.

The Act contains no enforcement procedures for failure to serve a notice. However, if you start work without having first given notice in the proper way, Adjoining Owners may seek to stop your work through a court injunction or seek other legal redress.

https://www.gov.uk/government/publications/preventing-and-resolving-disputes-in-relation-to-party-walls/the-party-wall-etc-act-1996-explanatory-booklet

Yes, technically there is damage, as they have built over the boundary line and foundations. There's every chance the vendor can report them to the council as they changed the final build plans from the version that was approved by the council/Party Wall consent signed by the tenant. So it's either they risk a sue-compensation claim/knock down their extension or surrender ROW?

Section62

Newbie22FTB said:

Just to say that I'm in the last few weeks of my mortgage offer, before it expires. Since I last posted, the vendor has instructed a litigation solicitor, who will also offer the neighbour the chance to compromise by surrendering the ROW, in exchange for not being sued for having extended their house without serving the correct Party Wall notice to the vendor (only to previous tenant).

That doesn't sound right.  The vendor could take legal action because the extension is partly built on their land, but not for failure to serve a PW notice on a project which has been completed.

Is/was the vendor able to prove the extension is partly on their land?

Newbie22FTB

Section62 said:

Newbie22FTB said:

Just to say that I'm in the last few weeks of my mortgage offer, before it expires. Since I last posted, the vendor has instructed a litigation solicitor, who will also offer the neighbour the chance to compromise by surrendering the ROW, in exchange for not being sued for having extended their house without serving the correct Party Wall notice to the vendor (only to previous tenant).

That doesn't sound right.  The vendor could take legal action because the extension is partly built on their land, but not for failure to serve a PW notice on a project which has been completed.

Is/was the vendor able to prove the extension is partly on their land?

Yes, I believe so. The vendor's litigation solicitor will be confirming all the options available to force the neighbour's hand in surrendering the ROW. 

Newbie22FTB

My question is really aimed at the scenario of that threat being successful and how I can safeguard an agreement to surrender the ROW, in the limited amount of time left (should the deeds not be quick to change)?

Section62

Newbie22FTB said:

My question is really aimed at the scenario of that threat being successful and how I can safeguard an agreement to surrender the ROW, in the limited amount of time left (should the deeds not be quick to change)?

The solicitors could draw up a contract that would be legally enforceable - i.e. that the neighbour agrees to the removal of the RoW in exchange for 'x'.  You may want to be a party to that contract to make it easier to enforce yourself, rather than needing the vendor to do it on your behalf.  I would think the most sensible 'x' would be the transfer of the land the neighbour has built on to the neighbour.  I'd tread carefully with anything which could hint at 'blackmail' (e.g. 'we won't report you if you do what we want').  Bear in mind that things like the right to report a planning infringement to the local planning authority can't be signed away.  It is effectively the equivalent of hush money, and if the contract/agreement came before a court the judge may take a very dim view of the whole arrangement.

I'm somewhat sceptical the legal strategy as you've described it will work. But courts are unpredictable.

TBH the biggest issue here is whether you really want to become the neighbour of someone who has been threatened with legal action in this way (and has crossed various lines themselves).  You are effectively buying into a neighbour dispute, and I think it would be optimistic to believe that will go away after you've purchased.