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Original poster

Right of way/right of easement!

48 replies

Witchtower · 30/03/2019 09:24

I posted the other day but didn’t get much of a response, so I’m still none the wiser. Hopefully more info would help me out.

My title already shows how confused I am. I have been doing some research, all with vague, conflicting information.

I live in a share of freehold where the garden has been divided into 4. My garden is at the back but there is a path to my garden which is located on the far left hand side of my downstairs neighbour’s garden. The same applies to the other two gardens but the path is on the far right.

I have looked at the plans and it is definitely owned by neighbour downstairs and I have right of way/right if easement. From the information I have been reading this morning it sounds like it’s right of easement as it is private property, but I could be wrong.

My question is who is responsible for maintaining it? It is currently completely blocked with bushes. Am I supposed to do this or is the neighbour? It has previously been the neighbour (past 5 years) unfortunately due to another dispute which is unrelated, she now refuses to maintain it and also said she does not want me walking on her garden.

HELP??

OP posts:
Notastepparentbut · 30/03/2019 17:39

*says

Original poster
Witchtower · 30/03/2019 17:43

@Notastepparentbut on the plans for the building my path says it’s right of way access to me.

I’ve also seen this in the lease...

‘Not to use the rear garden other than as a private cultivated garden and to keep the same neat and tidy’

Well it’s definately not tidy if weeds are covering the path.

OP posts:
Notastepparentbut · 30/03/2019 17:45

I’d need to see the whole deeds.

Neat and tidy re bushes wouldn’t contravene it.

May is not must. If you get me.

Notastepparentbut · 30/03/2019 17:46

You need to find out if you were granted that as an easement (a right of way is a specific type of easement) at the time you purchased the property.

Original poster
Witchtower · 30/03/2019 17:51

@Notastepparentbut
That is literally what it said. That was the whole clause, just neat and tidy.

Neighbour signed this, including a copy of the building plan.

But the lease is confusing as we are the landlords and tenants. Was written in 84so it’s very vague.

I was just hoping I didn’t have to take an another one of her responsibilities.

OP posts:
Notastepparentbut · 30/03/2019 17:52

What do you mean you’re the landlord and tenants? You can’t have an easement over your own land.

Original poster
Witchtower · 30/03/2019 18:01

It’s a share of freehold. So the lease was written for the tenants, which we are but we are also the freeholders.
We both own our property and own a share in the freehold company.

She owns her section of the garden and I own mine but I can I can only access my garden through the path in her garden.

Old period conversion, divided into 6 flats.

OP posts:
Notastepparentbut · 30/03/2019 18:04

You really need to go and get legal advice.

Or just cut the bushes back and offer her the cuttings.

Original poster
Witchtower · 30/03/2019 18:05

That was my second option.

OP posts:
MinnieMountain · 30/03/2019 18:07

Her lease should have a full description of what constitutes her property e.g "the internal walls, ceiling up to the plaster, garden etc" and her obligations or covenants.

If her property description includes the path, it's almost certainly her responsibility.

If not, it's the freeholders' (not you as an individual leaseholder IYSWIM. You have a leaseholder "hat" and a freeholder "hat").

bluecitygirl · 30/03/2019 18:35

I would post on garden law forum they may have an answer for you.

Original poster
Witchtower · 30/03/2019 19:12

@MinnieMountain we all have exactly the same lease. Plans are VERY simple.

OP posts:
Movinghouseatlast · 30/03/2019 19:23

Yes to garden law forum.

My neighbour had an easement over my garden. It is a general rule with easements that the servient owner (your neighbour) must not block of obstruct use of the easement. It doesn't have to be written in the deeds, it is an implied condition.

So she should keep it clear for you. You cannot touch her bushes etc though. She has to prune them.

Forcing her to do this is the problem. If she won't do it all you can do is take her to court.

Some easements say that the dominant (that's you) has to pay towards maintenance of the land over which you have a right of way.

Original poster
Witchtower · 30/03/2019 19:39

@Movinghouseatlast thank you. Def not going to start this thread again. I’ve already confused enough people with having more than one on this one.

Def have another question for the legal page regarding this neighbour but will do that at a later date.

OP posts:
Movinghouseatlast · 31/03/2019 16:47

The Garden Law forum is a different website, specifically for garden law queries. Nothing to do with mumsnet.

You will get better replies on there. Just Google it.

Heronwatcher · 31/03/2019 20:13

If it’s you who wants to use it then I think you need to maintain it. If you’re worried about her complaining then either have a conversation with her about it and agree or if relations have broken down put a note through her door letting her know what you intend to do and when you intend to do it but that if she clears it before then you are happy not to.

GU24Mum · 31/03/2019 21:46

OP, if you all have leases, you need to read the "rights" and "reservations" parts of your lease and, if necessary, the lease of the person you think has the path within her demise (ie she "owns" it under her lease). You can order her lease from the Land Registry cheaply if you need it.

If you want to pm me with the extract, I'm happy to have a look.

Original poster
Witchtower · 01/04/2019 07:09

@GU24Mum I tried to PM someone the other day but it didn’t work.

There are no headings in my lease. I have a copy of her lease and it it identical to mine, just a different flat number inserted.

I’ve also got the building plan, well the only thing which resembles a building plan.

It shows the full garden, 4 flats, that were divided into 4. There is a key at the side. My flat is shaded and belongs to me, hers is shaded and belongs to her. The path on the far left hand side of her garden is also shaded differently and says ‘right of way for flat x’

I’m happy to send you a pic of it.

OP posts:
Blankscreen · 01/04/2019 07:12

You could potentially have an implied right to repair and maintain ihe path otherwise your easement is frustrated.
You need proper advice.

Original poster
Witchtower · 01/04/2019 07:13

Unfortunately there are no measurements.
Half of the path has been removed. I’m not sure if she did it or previous owners. But it’s oretty obvious that 50% of it was removed (width)

OP posts:
Original poster
Witchtower · 01/04/2019 07:14

I’m going to try the garden forum that another pp suggested earlier.

OP posts:
Chocolatedeficitdisorder · 01/04/2019 07:19

You could always make sure that you've asked her, in writing, to clear the path for your use. When she doesn't you could employ a garden company to do so and ask her to pay for it. If she refuses a smalls claims court official might request her to do so.

GU24Mum · 01/04/2019 22:27

Hello, I'll try and pm you and see if that works.

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