Right of way.

[Tormented]

Hi,

In 1994 I purchased a small site .30 of an acre aprox which was originally the large garden of a neighbours house. The site is situated behind my Mothers house, prior to purchasing the site my mother agreed verbally to let me have a right of way and an entrance through her garden to gain access to this landlocked site I purchased. I only purchased the site as she agreed to give me a right of way. The right of way was never registered and the problem now is that my Mother is very elderly 73 and suffering from dementia and says that " of course that I have RIGHT OF WAY, sure dont you know that !" but it is impossible to get her near a solicitor, if I make an appointment with a solicitor she will invariably be ill, confused, bad form, forgot appointment, you name it. The long and the short of it is that I cannot get her to the solicitor to sign the deed of right of way and wayleave, I cannot press her further as I do not wish to cause any upset. I would rather walk away if I have to.

I wanted to build a house for myself, on this site however if I cannot show a right of way, I wont be able to raise the finance / mortage or indeed apply for planning. I applied for planning in 1994 and got approved for full planning, however this lapsed and I have not applied since. (I guess the planners at the time assumed that as it was family property, that I would had a right of way and approved the application.

I paid 11,000 pounds for the site and it is registered in my name.

Is it possible that I would have established a right of way by frequent access / use since 1995, " I live in the family home with my Mother.

PS: a brother has suggested that he wants to buy me out of the family house I have "1/12 share" if I also sell him my site for 70,000 euros what kind of capital gains would be on this .

I appreciate this is detailed but would appreciate any advise.

 

[csirl]

Is it possible that I would have established a right of way by frequent access / use since 1995, " I live in the family home with my Mother.

No, not long enough - needs to be 30 years.

And the bad news is that I would think that since 1995 does not count towards you acquiring an right of way by adverse posession/useage. As your mother had given you permission to use the access to the site, albeit verbal, you may legally speaking be deemded to have a license to access the site. A license has the full consent of the land owner it cannot be used in an adverse possession claim.

A formal registered Right of Way or a right of way acquired through the landowner not actively stopping you crossing without permission and actual permission from a landowner to traverse land are not legally the same thing, though in common every day speak, people use the term "right of way" for all instances where permission is given.

You could claim that there is a verbal agreement between you and your mother to register a ROW in your favour - i.e. a verbal contract, but this is something you'll need legal advice on, particularly given your mothers health.