Getting rid of a right of way over private land.

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    Getting rid of a right of way over private land.

    Some friends are considering buying a house which - they have been told by the neighbours - has an old right of way allowing farmers to drive tractors from the front to the back using the side path. Nobody has exercised this right since at least the 1970s (probably before), since the land behind the houses which was farmland, is now covered in modern council bungalows for older people.

    If they cannot build a garage on the side pathway of this house (a semi) they will probably not buy it, but it would be useful to know what can be done about the right of way (if anything), before embarking on the purchase . Can it be removed? How?

    Thanks in advance for any information or advice. We've looked on legal websites but soon become embroiled in jargon and are no further on.
    'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

    #2
    Have they had a look on the land registry to see if this appears on the land registry entry for that property?

    Comment


      #3
      I'll check. If it doesn't, does that mean it no longer applies?

      And if it does, whats the next step?
      'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

      Comment


        #4
        Some friends are considering buying a house which - they have been told by the neighbours - has an old right of way allowing farmers to drive tractors from the front to the back using the side path. .
        Should there have been a right of way granted for the benefit of what was agricultural land, then it would seem to be the case that the right of way can no longer be used by the residents of residential properties that now occupy the land intended to benefit from the grant.

        It would not be wise to listen to a verbal comment from neighbours, but the wording used when the grant was made does need to be seen before a final decision could be made about whether the right of way is no longer valid.

        Sometimes on a register of title it will quote the words used when the right of way was granted, or it would state that the property is subject to such rights as were granted by a Conveyance dated ?????? with no further details shown.
        That is when it would be necessary to make an application to Land Registry for a copy of this old conveyance.

        A fee of £7 would need to be paid and the OC2 form can be downloaded from the LR web-site.

        Comment


          #5
          As the benefit is for the agricultural land you might find it in those deeds not in the deeds of the house you want to buy. I don't think it's true that the right would be extinguished because it's no longer agricultural land, I think the benefit extends to anyone who owns a bit of it. I'm not aware of a way to extinguish it, I'd be interested to know if it's possible. In reality it's unlikely anyone on the new estate knows about it or would want to use it. Is there still a gateway into it or has a house been built there?

          Comment


            #6
            A property can be subject to rights of way and other easements not shown on the register because they are overriding interests; see this guide, in particular section 5.3.

            There is no procedure for modifying or extinguishing easements equivalent to that for modifying or discharging restrictive covenants. An easement is part and parcel of the land it benefits and you can no more get rid of it than you can claim part of your neighbour's land on the grounds that you will make better use of it.

            An easement can be abandoned, but in the case of rights of way mere non-use, for however long, is not sufficient. The explanation here saves me a lot of typing. What may help in this case is point 2 under the sub-heading Test. If the right of way is clearly agricultural only and there is no agricultural land capable of benefiting from the right of way there has to be a good argument that the right has been abandoned.

            A possible solution, if your friend is risk averse, is to see if indemnity insurance is available.

            Comment


              #7
              Hallo. Strangely enough I have been looking in the last few days at trying to squeeze a townhouse into some unused land which is vacant and unlet. There is a pedestrian right of way across the extreme right and the solution i have is to offer an alternate right of way about 8 metres to the east. I am going on the assumption that if an alternative right of way is available this will suffice.

              Comment


                #8
                Originally posted by flyingfreehold View Post
                I am going on the assumption that if an alternative right of way is available this will suffice.
                Do not go on that assumption. You cannot unilaterally alter the route of a right of way even if the alternative is equally convenient.

                Comment


                  #9
                  Reverting back to the original poster's query, there is case law regarding whether the granted right of way that was for a particular purpose can continue when the dominant land has changed its character to beyond that which was contemplated when the original Grantor executed the deed that granted the right of way for a specific purpose.

                  It was to allow an agricultural vehicle to access an adjacent parcel of land in agricultural use, when such use would be very infrequent due to the seasonal nature of agriculture.

                  There is a reference to a case in this web-site, when the Appeal Court refused an appeal after reviewing legal precedent.
                  https://www.lawgazette.co.uk/news/ea.../41541.article

                  Comment


                    #10
                    If it's a public right of way then diverting or re-routing it is not that simple:

                    https://www.gov.uk/guidance/public-r...sponsibilities
                    https://www.gov.uk/government/public...-legal-records

                    Comment


                      #11
                      Originally posted by royw View Post
                      As the benefit is for the agricultural land you might find it in those deeds not in the deeds of the house you want to buy. I don't think it's true that the right would be extinguished because it's no longer agricultural land, I think the benefit extends to anyone who owns a bit of it. I'm not aware of a way to extinguish it, I'd be interested to know if it's possible. In reality it's unlikely anyone on the new estate knows about it or would want to use it. Is there still a gateway into it or has a house been built there?
                      There is a gate from the back garden of the house into a back lane which runs the length of the 14 houses (the house in question is about half way along). The long terrace of new bungalows (parallel to the houses) also back onto this lane. A person, let alone a vehicle or tractor, could not physically get further than the back gardens of these bungalows, even if they came through the house garden.

                      'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

                      Comment


                        #12
                        Originally posted by Lawcruncher View Post

                        A possible solution, if your friend is risk averse, is to see if indemnity insurance is available.
                        That is a very good suggestion, thank you. They are hoping that there is no mention on the land registry of the easement or that if there is, they could argue the reason for its existence had been abandoned when the council built on the land. That may take some time so indemnity insurance could offer some peace of mind (in case some besmocked farmer from a remote part of the county turns up with a wagonload of hay and demands access).
                        'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

                        Comment


                          #13
                          Thank you to everyone for their contributions.
                          'Pause you who read this, and think for a moment of the long chain of iron or gold, of thorns or flowers, that would never have bound you, but for the formation fo the first link on one memorable day'. Charles Dickens, Great Expectations

                          Comment


                            #14
                            Originally posted by flyingfreehold View Post
                            I am going on the assumption that if an alternative right of way is available this will suffice.
                            That is a dangerous assumption. I know people who have tried and failed. The ramblers association seem to object as a matter of principle even when it makes no difference to them.

                            Comment


                              #15
                              Originally posted by royw View Post

                              That is a dangerous assumption. I know people who have tried and failed. The ramblers association seem to object as a matter of principle even when it makes no difference to them.
                              There is a difference between private and public rights of way.

                              There is no mechanism for a person over whose land a private right of way is exercised to get the route altered.

                              Orders can though be made for public paths to be diverted or closed.

                              Comment

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