Should I give up? ROW

FirstTimer2020

Hi all.

I purchased a mid terrace property back in 2020. Both the estate agent and previous vendor indicated the existence of a right of way (row) to use an access way down the side of the neighbours property to access our garden. The deeds did not confirm this and our lawyer initially indicated there was no documented legal row before suggesting we could register it after moving in, and as such suggested indemnity. Our neighbour does have such a row written to cross both our land and our neighbours land.

We had documentation that the accessway had been used from the 60s to 2008 and then the previous owner provided a stat dec for 2008-2012. Further a purchase form from the 1950s indicated that is was also available for use.

The current owners believe a row exists for us and are unaware it's not documented.

We have tried to get this registered with land registry but they have said that our evidence is not sufficient to convince them and they would require either a stat Dec covering the requisite 20 year period or for the neighbors to sign a deed confirming the row.

While we currently have unfettered use at the moment we are concerned that given they plan to sell future owners may challenge this usage.

We don't know whether to speak to the current owners and explain (with the risk they may stop us using it after realising it's not documented) and see if they'll sign a deed confirming what they believe to be true, or hope to attempt to try and re-register it in a few years when we have 20 years of stat dec.

Thoughts on what you would do? Try and resolve now with the risk to access (however minor) or wait and hope a future owners doesn't challenge it while we try and secure 20 years coverage).

Ultimately we appreciate we could straight up lose access even though it's been used for over 70 years, just because we don't have sworn declarations to that effect and would need to sell it as without having access.

Teapot55

How would you be affected if future owners stopped you having access eg by installing a large fence and gate?

What do you do now that you would then not be able to do if that happened?

(Not saying that it’s likely or justified). 

FirstTimer2020

So the owners historically extended their garden into the accessway and there is a gate at the side of their garden (at the bottom) into the accessway that keep open for access which they would (regardless) have to maintain for our neighbour on the other side of us (the one who does have a documented right). I have maintained the accessway behind the fence at the bottom of my garden. So a gate for the accessway already exists.

The only thing we use it for is for gardening related stuff (bin), window cleaners every few months and did use it once to do some landscaping but we have no plans to do much more before we move.

theoretica

A ROW should be in both your deeds and the land you cross.  You probably have checked, but just confirming you have looked at the deeds of the property which owns the passageway. 

ProDave

It sounds like a non issue if someone further along the row does have a documented ROW so the path (including the bit behind your own garden) is kept open.

The only scenario I could imagine is if you had a major falling out with your neighbour and he out of spite put a padlock on the gate and gave a key to the house that does have the ROW but not to you.

FirstTimer2020

theoretica said:

A ROW should be in both your deeds and the land you cross.  You probably have checked, but just confirming you have looked at the deeds of the property which owns the passageway. 

The row is documented in there's but doesn't specify to who it applies. Then in the other houses it makes references. We've had lots of legal advice. I'm really just asking views on what people would do in my situation

Teapot55

@FirstTimer2020 (I should amend to ‘if they were to lock the gate’). 

Theoretically a future neighbour could turn against you, preventing your currently entirely reasonable use, which would be a real pain. 

Also theoretically a future occupant of your property could be wanting to exercise their right and allowing offspring to access their garden/ rear of the property multiple times a day, complete with litter dropping, accidentally touching stuff, stray football and large dog doing what dogs do. Their neighbour then might seek to restrict access. 

The legal position is likely more fraught than it would appear on the surface. 

FirstTimer2020

ProDave said:

It sounds like a non issue if someone further along the row does have a documented ROW so the path (including the bit behind your own garden) is kept open.

The only scenario I could imagine is if you had a major falling out with your neighbour and he out of spite put a padlock on the gate and gave a key to the house that does have the ROW but not to you.

This is what my partner thinks (about it being a non-issue in practical terms because some form of access would need to be maintained). My concern is for future neighbours doing exactly that I suppose.

user1977

FirstTimer2020 said:

our lawyer...suggested indemnity.

With what result? Do you now have indemnity insurance? If so, that almost certainly has a condition that you don't raise the matter with the neighbour - you just claim if and when a dispute about your access arises.

stuhse

I'd suggest you keep quiet.  Any new owner it seems is unlikely to download and study your deeds.  They will see the right of way on their deeds , they will see the layout and have little reason to question your rights it would seem.  Go for registration if you ever encounter problems AND after you have the twenty years.   In all honesty if this saw a court room and what you describe is correct i think there are a number of counts which would potentially mean you would be successful in your claim.   Just use it respectfully so as to reduce likelihood of issues. As noted by others practically it would be very difficult for them to prevent you using it due to the other house having rights.  It seems this has most likely been a conveyancing error in times gone by.   It could be worth you putting this query on the gardenlaw forum. There are some with specialist knowledge on there.

propertyrental

Create a deed with the neighbour and lodge against both properties.

Then no future argument possible.