# Establish a right of way.



## Tormented (4 Mar 2009)

Hi,

in 1994 I purchased a small plot of land behind my Mothers house, with the intention of building a house on the land for myself. At the time I applied for and got full planning for a private house. I did not proceed and planning lapsed. It was agreed at the time of purchase that my Mother would grant a right of way through her land inorder to give me access to my site. She has now become difficult and says she has no problem with this, but as soon as I mention both of us going to a solicitor to put it in writeing she backs out, and wants it put off until, she feels better, rain stops etc, this is going on for years, I need to move on.


I would not have bought the property unless I was offered the right of way, as it is landlocked.

I have been in and out of that property on foot and by vehicle since I bought it, cutting trees, maintaining property etc.

Can I register a right of way by establishment, ie having established a right of way by constant use, if I can how is this completed legally, what is the tme scale involved.

I would appreciate any help on this one.


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## csirl (4 Mar 2009)

You say that your mother agreed to a right of way when you purchased the land. Was the right of way included on the deeds? 

Answer is quite simple. If it was included, it exists and you can use it. If it wasnt, it doesnt exist and your mother is under no obligation to grant you one.


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## MOB (4 Mar 2009)

csirl said:


> Answer is quite simple. If it was included, it exists and you can use it. If it wasnt, it doesnt exist and your mother is under no obligation to grant you one.




Sorry to differ, but actually, it is not quite that simple  This should, of course, have been addressed in the manner suggested when the plot of ground was transferred, but it does not mean that you are now without a remedy.  Consult a solicitor.  You really will need to get this established properly before you can raise mortgage finance.


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## Tormented (4 Mar 2009)

Hi MOB

thank you and also csirl for your replies, however I must point out one omission on my behalf.

I did not purchase this plot of land from my Mother, I bought it from a neighbour whose property adjoined my Mothers property, and I was fully aware that it was land locked but I did not have a problem with this as my Mother assured me that there was no problem granting a right of way in order to give me access.  

I am not sure but I think that I now have established a right of way by regular use since I purchased the site.


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## MOB (4 Mar 2009)

This does indeed alter the picture and not for the better.  It remains the case that you may have a legal remedy and that you should consult a solicitor;   but it is certainly a weaker proposition.

Establishment of a right of way by long usage is tricky.  It does not ( usually) get registered in the Land Registry ( it is what is called a "Section 72 burden").  In any event, such a right of way is pretty much useless in the context of trying to get a mortgage or indeed to sell a house in the future.

Why not get the paperwork drawn up and see if you can get your mother to sign it at home?  Most solicitors will gladly pop out to a house for something like this.   If she flat out refuses to sign, at least you will know where you stand.   Make sure the solicitor is fully appraised of the situation, as he\she may feel that it would be better to have your mother independently advised ( I would probably insist on it if I were dealing with this).

By the sound of things, you may not be going ahead to build a house for yourself.  It may well be argued that your mother's offer of an easement was based on an explicit understanding that this is what it was to be for.  There is nothing straightforward about this situation.


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## Tormented (4 Mar 2009)

Hi MOB

thank you very much indeed for your answer to my question, this indeed explains where I stand very clearly. I will ask my solicitor to draw up the documentation and again appeal to my Mother. In the past I have made my  solicitor aware of the situation re my site, however more pressing matters were to the fore at that time, the situation has now changed with the offer by the developer.


Thanks again MOB, much appreciated.


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## Bronte (5 Mar 2009)

You did not mention a developer before?  Has a developer offered to purchase your site?

Can you purchase a right of way from the adjoining landlowners?


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## Tormented (5 Mar 2009)

Hi Bronte,

apologies re not mentioning developer previously, and yes a developer has made an offer, and in regard to your suggestion re purchasing a right of way from an adjoining owners, this is not possible as no other access exists at this time, my only option here is through my Mothers property as outlined.


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## murphaph (5 Mar 2009)

Why not offer to sell back to your mother at whatever you paid for it and let her sell to developer with the right of way?


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## Tormented (5 Mar 2009)

Hi all,

the main problem here is that anytime my Mother even hears of the involvement of a solicitor she baulks, however she keeps insisting that

 Quote " there is no problem, of course you have a right of way, I said so always didnt I " 

If I got the documents drawn up with origional OS Map marked by an engineer etc, could it be signed by my Mother and myself at home and witnessed by an independent witness, is it legally required to have any of the parties solicitors present.

If she did sign, what is the procedure to register the right of way with the Land registry, can I do this myself.


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## murphaph (5 Mar 2009)

I was tryong to put it tactfully but I'll be blunt:

Are you sure your mother isn't p'd off that she sold you the site for your own use and now you want to (presumably) profit from it by flogging it on to a developer? If profit is not the motive you could offer to sell back to her at cost price and you can walk away and she can profit from the development of the land. Property/land is an emotional issue for many.


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## Tormented (5 Mar 2009)

Hi Murphaph

I did not buy the land from my Mother, I bought from an adjoining landowner, understanding fully well that it was landlocked and that my only access was with a grant of a right of way which was promised by my Mother. I would not have bought the property otherwise.
 Many years previously my Mother sold adjoining family property, her motive was profit, like wise I am also motivated by profit in selling to a developer.


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## murphaph (5 Mar 2009)

Oh right. I see now. You're in a right bind and your best bet is still your mother granting you a right of way.  Did you originally tell the mother you were intent on buying the adjoining site to build your own home on? Maybe she'd grant you the right of way if that was still your intention? You know your mother better than anyone here, do you think there's even a possibility she resents the idea of signing over a right of way so you can make a profit out of it rather than allowing you to build your own home? There's a big difference in principle I think. Have you asked her straight out if she has a problem with you making money from selling the site on? Might be best to confront this head on if she doesn't look like granting you a right of way.


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## Tormented (5 Mar 2009)

I did buy the site with the intention of building a home on it for myself and Mother was delighted, however when time came to raise mortage etc I needed the right of way grant, and she basically messed me and my solicitors about for years, I would not now be in a position to raise a mortage especially in the present climate, also time has moved on. 

Therefore the offer from the developer is very appealing................


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## csirl (6 Mar 2009)

Maybe your mother just doesnt want the hastle of having a right of way through her land. She may be ok with granting it to you as a close relative, but I can fully understand not wanting to give a right of way to a bunch of strangers (whoever ends up living in the house). If it we me, and I didnt need the money, there is no way I'd allow anyone a ROW through my property. Apart from the interuptions to your "quiet enjoyment" of your own property, ROW's have a high probability of causing problems down the line - something an older person like your mother could do without.

Have you tried any alternative strategies i.e. purchasing adjoining land that isnt landlocked or purchasing a ROW from another adjacent landowner?


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## Tormented (6 Mar 2009)

Hi CSIRL,

I understand your point, of course , however I am the one who paid hard earned money for the site on the understanding from my Mother that I would have a right of way.


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## murphaph (6 Mar 2009)

Yeah I can't help but feel that if I'd given the nod to my brother or something for a right of way past my house to a single dwelling for his own use that I'd be changing my mind if he then asked for the same right of way to access a develpment for who knows how many strangers to be passing by. The mother may have a point but it sounds like she was dragging her heels even when the OP was intending building his own house so he may never have got it from her under any circumstances.


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## nuac (7 Mar 2009)

Tormented - I cannot see any good prospects of an action against your mother to grant you a right of way, especially if it is to facilitate a developer rather than a house for yourself.

A right of way of neccesity only applies over the land of whoever sells a landlocked site.

Talk to her.

Perhaps she is reading this board and will contact you!


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## Tormented (7 Mar 2009)

Thanks Nuac

does not look good, does it !


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## extopia (7 Mar 2009)

Your mother's offer of a right of way (even though she dragged her heels) was based on YOU living on the site, not someone else. Granting the right of way to facilitate someone else (a developer and a future resident) is a completely different prospect. Why should your mother give this up now as there is no advantage? 

Would a financial incentive assist in any way?


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## Tormented (7 Mar 2009)

Hi Extopia,

thank you for your reply, I  must point out that my Mother is moving in to a nurseing home on a permanent basis very shortly, and therefore at this stage it makes no difference to her. Neither is there any advantage in refusing a right of way.


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## shesells (8 Mar 2009)

OP is there any more info you want to share as part of your case? Already you've added several times to the original story. People have been trying to offer advice but without the full story it's hard to help.


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## rmelly (8 Mar 2009)

Tormented said:


> Hi Extopia,
> 
> thank you for your reply, I must point out that my Mother is moving in to a nurseing home on a permanent basis very shortly, and therefore at this stage it makes no difference to her. Neither is there any advantage in refusing a right of way.


 
What happens to her property when she moves in? Is it being sold?


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## murphaph (8 Mar 2009)

If she's going into a nursing home she may need every penny she can get from selling her house and having a right of way down the side of it to a (potentially large?)development will undoubtedly reduce its value.


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## extopia (8 Mar 2009)

Wow, the story is certainly getting clearer with every post. I wonder if there's any resentment on the mother's behalf about being moved into a nursing home?


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## Tormented (9 Mar 2009)

Hi Extopia

the financial incentive would not work, and as she will not be residing in the house much longer due to moving to full time residential care, it makes no difference to her.  Her response to all this  is to do nothing to help in any way.

Thank you for taking the time,

I am close to closeing the file on this one, accepting the loss, and walking away

You can choose your friends, you cannot choose your family !


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## Ceist Beag (9 Mar 2009)

Tormented said:


> You can choose your friends, you cannot choose your family !


I have a funny feeling your mother might be saying the same thing - no offence but on my reading of this thread I'd be on her side here. As others have said she probably would have granted right of way if you were to live in the house but not when you're selling it on to strangers. It sounds like you're the one who has been unfair to your mother here, not the other way around. And your attitude about her moving to care so it doesn't matter to her anymore just smacks of selfishness.


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## csirl (9 Mar 2009)

Tormented said:


> Hi Extopia
> 
> the financial incentive would not work, and as she will not be residing in the house much longer due to moving to full time residential care, it makes no difference to her. Her response to all this is to do nothing to help in any way.
> 
> ...


 
It makes a huge difference to her as it significantly devalues her property.


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## Tormented (9 Mar 2009)

Hi Ceist Beag,

thank you for your mail, I absolutely understand your point of view, based on the scant information I have provided, however in the position I have been placed in, I have to disagree with you.

Thank you for your comments.


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## Tormented (9 Mar 2009)

Hi all,

thank you all for your kind comments, and suggestions regarding the specific question of Right of way. I believe that I have now been fully appraised of my legal position on this, which was the origional question, therefore I wish to thank you all and close this thread.

Tormented


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