Right of way

[ER7PH]

Hello,

I am seeking some advice regarding a situation with our property (sorry for length).

We purchased a Victorian house in London approximately three years ago. One of the key reasons for selecting this house was that it could only be accessed through the front door, which we viewed as a positive security feature.

Recently, our neighbour informed us that she is selling her house and inquired about the ownership of the fence between our properties. During our conversation, she mentioned that the previous owner of our house had removed the right of way at the back of our garden. This was news to us, as it was not mentioned by our solicitors during the purchase process. The previous owner of our house had extended the garden by removing the fence and planting trees, thereby obstructing the original right of way.

Upon further investigation, I reviewed all correspondence from our solicitors and found no mention of this issue. However, upon closely examining the title deeds, I noticed there are blue lines indicating a right of way (on our land), which required maximum zoom to identify.

I would like to seek advice on how to proceed. The right of way is currently inaccessible due to the trees planted by the previous owner, and other houses on the terrace have similarly overgrown their paths, making them impassable. Additionally, the entrance to the right of way at the end of the terrace is padlocked.

Should we remove the trees to restore the right of way, despite the significant cost involved? Alternatively, is there any form of insurance or legal protection we can obtain? I have contacted the solicitor who handled our initial purchase, but their response has been slow, and I am quite frustrated with their service for obvious reasons.

We do not plan to stay in this house long-term and would prefer to resolve this issue before selling to avoid potential complications if a diligent solicitor notices this during the sale process. Any guidance on this matter would be greatly appreciated.

Thank you.

I wouldn’t touch it, and when you come to sell say you aren’t aware of anything and if pressed because they find something offer to buy an indemnity policy. Unless you get any formal correspondence in the meantime it would be difficult to prove. Might want to use a different solicitor in future.

Not ethical, but probably the right approach

If she just mentioned it in passing I would carry on as if you didn’t know!

Thanks everyone! Would it be possible to get the solicitor to put an indemnity in place currently or can you only do this when selling? Sorry this is all new to us but we have filled a complaint with the solicitor as they really should have noticed this - very annoying!

You indemnify the next person against something that hasn’t been an issue for you, but they think it may potentially be a problem in future. You can’t buy a policy for yourself.

If it became a problem then you might want to consider going back to your solicitor for the cost of putting it right on the grounds of negligence. But realistically no one wants a right of way through their garden (and most modern buyers are put off by these historic rights) so I wouldn’t poke that particular hornets nest.

Could we have a diagram please?
Does this mean that you also have a beneficial right of way that’s now inaccessible?

Oh, that’s tricky!
If you hadn’t made a complaint to your solicitor you could have tried to pretend that you didn’t know about this right of way and hope that your future buyer wouldn't be made aware of it either.
Now that you’ve complained to your solicitor, you can’t really keep your knowledge hidden when it comes to selling. I think the best course of action would be to enquire wirh the council if they agree to remove the right of way for safety reasons. They can sometimes move the public footpath (is that what it is?) to nearby arrears if they are not in other people’s gardens. Your solicitors should reimburse you for the costs of putting this right, or for the drop in value to your property (as nobody wants a public footpath in their back garden).
An alternative might be to move your fence in front of the public footpath - it will make your garden smaller but you won’t have people walking through your garden.

My mum did this with her garden maybe 35 years ago but kept a path and gates for access. Originally it was a lane between some Victorian houses and the original village shops, long since knocked down and houses built on the land.

Shortly after she did this the neighbour who 'benefited' from the ROW moved and the new ones built a shed over their gate.

There's some rule that after a certain period if a ROW hasn't been used then it loses its status as a ROW. If yours and your neighbours' gardens have actual trees growing on the former path I suspect any new owner would be hard pressed to prove that the ROW has been used for many years. I'll try and find the legislation.

This right of way on old houses is a pain in the a**. I have that issue at my home. Previous owners have blocked the right way (I'm end of terrace) but co-freeholder sometimes makes sure they walk through my garden just to make a point. They have been living there for over 20y so they claim easement rights even though the area on the side entrance is on my deeds but they have been storing their bikes there (which effectively block my way). No their neighbour can access my garden or access their garden from this entrance. It's mess. We have countless fights. Just leave as it is. Build a fence only a if the court makes you!

If the PROW is shown on the definitive map (held by the Local Authority), it is still a legal right of way for a member of the public to use. In theory, the council can ask for trees, buildings to be removed to open the path back up.

An application can also be sought to divert the path but it can be a long drawn out process (years) and will involve advertising to the public at large that a way is to be diverted. There may be objections.

Not a real estate lawyer or insurance broker.

I wonder if what you're looking for is an 'enforcement of known easement indemnity policy', although this is the first time I have come across it. It protects against financial consequences of somebody enforcing an easement over your land and e.g. making you cut down the trees.

Don't listen to PP who said you can't buy one yourself. Anybody with an insurable interest should be able to buy one. But it'll only be good for you as long as you're living there. A potential buyer would have to get their own policy and might ask you to buy one if they're worried about it. The might miss it like your lawyer.

You could even give suing your lawyer a crack for the cost of the indemnity policy, but I doubt even the highly litigious would be up for that.

If I were you, I wouldn't bother doing anything about it unless someone raises it on purchase, and I'd abandon your idea of resolving the problem before selling.

JF

I don't think we know whether it's a public right of way or not tho.

This is correct, although now there is evidence that you are aware (unlikely to be uncovered) so just say as little as possible.

Incorrect.

YOU don't indemnify anyone, but you might pay an insurer to do the indemnifying.

Also, while it's more normal to procure indemnity for your buyer, I bet you COULD buy a policy for yourself for the remainder of your ownership. But y bother...

We have a similar situation with a right of way through the neighbours' back gardens to our own.

In our case, it's very clearly listed as a separate document in the deeds and paperwork signed by the people who set it up in the past. I completely forget its legal name. Could that be the case for you? It should be outlined somewhere else other than zooming in if it's a legal right.

Yes we could do with that clarification.

We had this and it was quite straightforward registering the bit of land in our name via the Land Registry service. It had been owned by a now defunct church so it was transferred into out name without a fuss and wIth a small fee. Like yours, ours was overgrown but we’ve since cleared it to make a patio.
A subsequent neighbour tried to then claim right of way access and got quite unpleasant about it but our solicitor demonstrated the right had been abandoned at least 40 years earlier (we were given photos by another neighbour from the 70s) so the complaint went away.

I have no idea if its a public right of way - it is our land , but I cant see anything that stipulates its a public right of way. Sorry im probably being stupid here!

I suspect a public right of way would be pretty difficult to get rid of.

It's a bit strange that the conveyancing solicitor did not provide information re the right of way, I would expect this, but IANAL.

I am not quite sure why people view rights of way as a bad thing. It's worth thinking about why they are put in in the first place. Without them in a terrace your garden is effectively landlocked, so if you want to do works or store things like bikes it becomes a pain. There are obviously different levels of intrusion resulting from a right of way. To me a right of way at the bottom of a garden is the best to have, because then you don't get people walking past your windows which obviously some people find very intrusive. It's easy to fence off a right of way at the bottom to make it a separate path normally.

I guess the problems start when you have a group of people who informally agree to not use a right of way, and then someone comes along who decides they do want to use it. Removing someones right of way is tricky because you are effectively removing someone elses benefit and often multiple parties benefit from a right of way.

Thanks so much!

Thing is I think most people would be of the view their garden is landlocked as the 'right of way area' cannot be walked through. Further the person at the end of terrace has padlocked the entrance (we initially thought their house solely must have rear access) as we had no idea this right of was in existence. TBH feeling very annoyed by the solicitors as they should have raised this.

I don't think this would be a PROW, it sounds more like an easement so everyone in the row can get to their back gardens without having to go through the house? Do you have any direct external access to your garden or would you have to cross the bottom of everyone else's garden to get to yours?

If it's an easement and all your neighbours are happy not using it, you can get it removed in consensus

no direct external access to our garden

Is it mentioned on the Charges Register of your title? Sometimes the Land Registry forgets to update title plans, so the blue might be irrelevant.

Rights of way can only really be removed by mutual agreement. Any competent solicitor (sorry that yours wasn’t) will spot it when your neighbour sells.

I’m not a property litigation solicitor but if the right exists, you’ve got a choice of unblocking the rigid of way or refusing and risking a court case now that it’s been mentioned

...she mentioned that the previous owner of our house had removed the right of way at the back of our garden.

Had legally removed the right of way, or simply planted trees to physically prevent access?
I too need a map 😆

Do you mean a path behind all your back fences, but just to access each persons garden. Or a right of way for each neighbour to walk through each others gardens via gates in the fences? Sorry, I'm confused.