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Odd one about old public right of way across our garden

77 replies

GlomOfNit · 07/04/2021 18:19

I'm not sure what I'm after, posting about this - I suppose I just wanted some other opinions!

We moved into this semi 10 years ago. The houses on this road are arranged in sort of C blocks (god that sounds like a prison! Grin ) so some are right on the road and some are set back. Ours is set back from the road and accessed by a footpath that serves 4 other houses (it sort of branches at one point. Yes I do need to draw a diagram, I think). The NDNs that we're joined onto are also set back from the road. We are not concerned with them here...

Our other NDNs, we are not joined onto (semis, remember) and their house is aligned at 90 degrees to ours. Their front gate is also served by this footpath from the main road.

They have lived there forever (think the man actually grew up there, back when all these houses were council houses. There are about 20 and I think the council/HA now retain about 5 of them - all others are privately owned, including ours and these NDNs). The guy who lives there is VERY self-assured about his rights and so on. He claims that back in the day, a public right of way path used to exist - it ran from the main road, followed the existing footpath serving these houses and continued through our front garden, running between his boundary and ours but within our boundary IYSWIM, and then into his actual garden, then down what is now his drive and out the back onto the access lane. (an additional wrinkle here is that many of these houses are accessible by car only from the rear. Ours and his are two of those and we have long driveways the length of our back gardens, which feed onto a back access lane.)

NDN Guy has always been mildly belligerent about this old right of way and claims that it still exists, even though no member of the public would now use it, since it ends at his garden fence! He says it's on us to keep it clear and make sure he and his partner can get onto it in order to trim their various shrubs and vines that climb their fence, and that they have every right to do this without asking us. They DO sometimes tell us they're coming into our front garden to trim things - but make a BIG point of saying 'this is just a courtesy to you, because of course this is a right of way' Hmm

NDN Guy says that ages ago (eg before our time) he bought a thin strip of land off the council that, because of some odd foible, they still owned and which ran down his driveway at the back, and was therefore able to make his driveway a) wider, and b) private. He says by doing this, he closed off the public right of way at his boundary line, BUT that since it still runs across our front garden, he and his (annoying) partner can still pop in any time they like, without notice.

I do try to get on with him. He's basically friendly but does like to fiddle about in his garden and is never still. Hence all the trimming, etc. He is v long-suffering because we 'are no gardeners' (in his words) and basically have a long strip of grass and a couple of trees out the back (none of which overhang his property), plus a tallish hedge that screens the boundary between his house and ours. This is sometimes a point of contention because we let it grow fairly bushy (the birds like it) and he wants to be able to see over it from his upstairs windows to the View (which is nice). We know he has no right to a view over our land but hey, we try to keep the peace, so it gets a good prune most years. He also doesn't like the hedge because it runs along this mythical right of way and means he can't access it as easily as he would like to.

So. Not even sure what I want to know. Grin Is he BU? Are we? Is that even a thing, a right of way that hasn't been exercised for probably decades apart from by him? Can it still be a right of way if he actually blocked off one end of it? Does this potentially make our property vulnerable in any way, in the future?

OP posts:
sipsmith1 · 07/04/2021 21:41

@user1471530109 I’d have to check my notes as I haven’t practiced in a couple of years but I don’t think so. He’s still been accessing their garden, an easement could be for accessing part of your property that is otherwise inaccessible.

The easement if proven could stop OP from blocking it or encroaching by building on it.

TerryHearn · 07/04/2021 21:44

I’d spray neat weed killer over his “vines” one night. No need to come into your garden anymore then.

BalloonSlayer · 07/04/2021 21:46

I have a great app called All Trails which shows all public footpaths. I don't know whether it would show your right of way but I have been walking through fields I wouldn't normally dare to because it shows that there's a footpath, it seems to show everything. Worth a look?

Hellocatshome · 07/04/2021 21:49

I have no idea but feel a bit sorry for your Irrelevant Next Door Neighbours, I hope that isn't what you write on their Christmas card Grin

poshme · 07/04/2021 21:51

Shamesless place marking.

Love the diagram OP.

Isn't there something like you can't create a right of access (if there isn't a ROW) unless you can prove you were using it daily? So if you prevent access every so often it stops a right being created?

parietal · 07/04/2021 22:00

the Definitive Map which is held by the council should show all rights of way. if it is not on the DM, it is not a right of way. The deeds don't mark rights of way so they don't matter so much.

JetBlackSteed · 07/04/2021 22:17

I find it odd that the Right of Way that would have inconvenienced NDN has been discontinued ( not easy to accomplish) but he still claims the bit in your garden?
Get the maps for his and your properties from your council and be sure.

sipsmith1 · 07/04/2021 22:27

@JetBlackSteed it does because OP isn’t talking about a footpath but a prescriptive easement. In prescriptive easements (or any easement) there has to be dominant and servient land, this must be owned by separate owners. By purchasing the land the neighbours has extinguished the prescriptive easement as it is now owned by the same person.

WithLoveFromMyselfToYourself · 07/04/2021 22:33

Gold ⭐️ diagram!

GlamGiraffe · 07/04/2021 22:41

Fabulous diagram 👏👏👏 excellent use of so many colours with a key!

GlamGiraffe · 07/04/2021 22:56

It doesnt look like the diagram like he has a right if way iver your land in which case he definittly shouldnt be trespassing and damaging your plants without permission.
I suggest you buy a copy of his deeds (you can buy them gor any property) n get both the images and written part which details things like permissions by neighbours to cross land, ftom the land registry (make sure its the.gov site)..it will be interesting to see what us marked on them.i think its 3.50 (i could be making that up though🤔)

GlomOfNit · 08/04/2021 00:36

Well, this IS fun. I went through the wodge of paperwork from our house purchase ten years ago. (If it should be at all in doubt, neither DH nor I are very savvy about this sort of thing and we sort of trusted (HA!) that our solicitors would spot any anomalies, etc. So no, we've not really looked at this stuff much since purchasing the house.)

There is a photocopy in the card file from the Land Registry. Shock and horror, it actually shows yet another version of this contested bit of land! I'll link below if phone/internet lets me. As you can hopefully see, it outlines in red not just the part of the path that goes through our garden (like, a right angled corner section) but also the little triangular bit sticking out to the left. What it does NOT show is that the path continues off that little triangular bit before ending at the NDN Guy's fence. That part is what he goes on about, because when it's not been freshly trimmed, the hedge sort of grows onto that little dead-end spit of land (it's literally about 4 metres long). Since his fence runs alongside that spit of land and since he claims it's still a public path, he likes it to be clear so he can get at his fence. (for what? He's not painted it or treated it since we moved in. He does tidy away the hops and passionflower vines after they've died off, but they're on the other section of his fence, the bit running at right angles to it.)

Anyway. I can't pretend to read legalese but the Land Registry file talks about the 'Association' (meaning, the local Housing Association, eg the body that used to own all these houses, now owns a small number of them, and - I presume - owns this pathway??) having restrictive covenants over the land outlined in red, and that we can't build anything on it (it's about 2 metres across...) and that the land outlined in red has 'easements' existing on it - which I presume means, it's still a public-access path? The Land Registry paperwork talks about us being the 'Title Absolute' for our actual address (eg the address of our house and garden) and the 'Title Possessory' for the 'land adjoining' our actual address which I take to mean this bloody little bit of pathway.

but I agree with whoever was saying this earlier - if it's a right of way, then it has to GO somewhere! If NDN has blocked off the end of that path then it no longer goes anywhere, so surely it's now irrelevant?

OP posts:
GlomOfNit · 08/04/2021 00:38

grrrr, bloody internet/laptop/whatever is not letting me post images! Last try.

Odd one about old public right of way across our garden
OP posts:
GlomOfNit · 08/04/2021 00:40

oh bloody hooray! it uploaded at last. Grin Ok, I think I'll leave this for the moment.

Thanks for all the interest, advice, information etc. And also the diagram appreciation, obvs. I'll follow some of this up and if we get anywhere, I'll come back here and update. Might take a while...

OP posts:
Chloemol · 08/04/2021 00:57

I suggest looking at the Ramblers Association website. They are doing a large exercise on lost public rights of way

I would also contact your local council and speak to the rights of way officer. They should have records if he purchased land from them, and if he got a right of way blocked off

Divineswirls · 08/04/2021 02:20

If it is a right of way then he has to keep a gap in his fence for the right of way to continue on.

sipsmith1 · 08/04/2021 02:59

@GlomOfNit easements are not the same as public rights of way. Easements are nothing to do with the public rights of way officer and won’t show on definitive maps.

Your neighbour it sounds like has an easement over your land, likely written into his deeds by the sound of it. You can only terminate these easements if properties are combined (like your neighbour has done by purchasing the land he discussed), by agreement or if you could prove he hasn’t used it and has abandoned the easement (which he hasn’t). Thinking of it as a public right of way won’t help you here as they are different legal entities. Just because your neighbour has built a fence doesn’t mean the easement has been extinguished because he is using it to maintain part of his property that is not accessible from his property. The basis for this in case law is Re Ellenborough Park,

You can call the RICS for thirty minutes free advice on boundary disputes on this. Rural surveyors specialise in matters such as this and at uni I did an entire module in Easements and Wayleaves, it is quite a complex area of law!

AllotmentTime · 08/04/2021 09:08

I'll come back here and update.

An update promise AND lovely diagrams AND a TP username. You are the OP who just keeps on giving!! 🤣

SynchroSwimmer · 08/04/2021 09:13

This reply has been deleted

Message withdrawn at poster's request.

user1471530109 · 08/04/2021 09:34

Morning OP!
I can understand why you're worried about the second plan you've found. But it still doesn't show what your first diagram (your hand drawn one) showed that your neighbour was saying was 'his right'.
I think sipsmith is right and this is nothing really to do with the plans. That's a separate issue. I think he's been using it for x amount of years so now has the 'right' to keep doing it!

But. He would have to prove (probably easy) this and I'd imagine it would be costly for him (which will be the crux). It's not like he will want to fight this as the easement isn't physically going anywhere.
On your final plan you've shown. The plan looks slightly different to the original one with your red boundaries on. It appear that there is a gap/potentially a path between yours and the neighbours properties. This looks more like what you were saying originally. Is this what he was talking about?

When did you move in? My solicitor (3 years ago) was lovely and I have emailed since about issues/questions about my deeds. She has been very helpful. She didn't charge me Blush. It may not be too costly to get your solicitors to have a look. Especially if they have missed something, they are unlikely to give you a bill. I'd be querying that you have no recollection about being told about this but neighbour has said X. Can they clarify?

Good luck!

ArseInTheCoOpWindow · 08/04/2021 09:57

This thread is fascinatingGrin

GlomOfNit · 08/04/2021 11:42

Thanks again everyone, for your input!

Sipsmith I think you must be right and this is a matter of an easement rather than a public right of way - we looked that up on the County Council maps ages ago and it doesn't exist as a public footpath-type of way. The Land Registry docs talk about easements in their 'restrictive covenants' section. The same documents refer to us as 'Title Absolute' with regards to our actual address, but 'Title Possessory' with regards to the 'land adjoining' our actual address, which we take to be this strip of land, the path.

So what we'd like to know is - as 'title possessory' of that strip of land - do we actually OWN it? Is it a case of, we own it but there are restrictive covenants on it that stop us from doing various things with it (things listed include: parking a caravan, car or house on wheels on it, building any structure on it, putting up any sign other than a notice of property sale, etc!) and easements that allow anyone else onto it?

Or - scarier - do we actually NOT own it at all?

Sorry, I'm sure a simple google would help me here!

GU24Mum you kindly asked if you could PM me - of course you can! Smile

OP posts:
nickymanchester · 08/04/2021 11:51

'Association' (meaning, the local Housing Association, eg the body that used to own all these houses, now owns a small number of them, and - I presume - owns this pathway??) having restrictive covenants over the land outlined in red, and that we can't build anything on it (it's about 2 metres across...) and that the land outlined in red has 'easements' existing on it - which I presume means, it's still a public-access path?

It doesn't necessarily mean that it's a public-access path ie that just anybody can walk there.

What it does mean is that certain people can walk there.

It will all depend on exactly what the easement says as to whether your neighbour is included in the people who can walk across that path. For example, it may only be your neighbours in certain houses can use that path and not all the neighbours.

However, I would suggest that it is likely that the easement will say something like "the right to pass and repass on foot" which does not include the right to stop there and do some pruning.

Also, the easement will only be for the actual bit of ground that is shown in red on your latest plan. Anything outside of that is not covered.

However, as pp have said, it is possible that the neighbour has gained a "prescriptive easement" and you would need to think about that.

GlomOfNit · 08/04/2021 11:51

Since this thread appears to be entertaining people Grin I'll see what else I can find out locally, without (at this point) going as far as to hand money over to a solicitor (user1471530109 we moved in ten years ago so I doubt our solicitors would be able to help at this stage!). The other neighbours might be able to shed light. Next door (attached) to us rent from the HA and are unlikely to know anything, but one along from them have a similar 'floating front garden' to ours and I suspect have the same issues. But she's not enclosed her front garden because in her case, the path actually leads through her garden and to the house that SHE's attached to.

I'd talk to the attached neighbours of the NDN Guy, because they also used to have this path running right past the front of their garden but I assume also bought it or changed it legally in some way, because that path is now rerouted to run at the end of their garden, behind their fence, and they, like NDN Guy, have enclosed front gardens.... but if I talk to them, I'm essentially talking to NSN Guy because they're as thick as thieves. Grin

OP posts:
Waspie · 08/04/2021 11:56

I suggest you post your query on the Garden Law forum GlomOfNit Rights of Way There are some very knowledgeable posters there.

Also, try calling the Land Registry. They can be very helpful. You can download your neighbours title deeds from the land registry web site for £3 but if you may need to get copies of the full title for which you have to apply to LR. .Gov.uk site is helpful: www.gov.uk/get-information-about-property-and-land/search-the-register