Right of Way, Area of common parts

[success1980]

Hi everyone,

 

I own a house at the end of a cul de sac. There is no other house, no other garage, footpath etc leading away from there. My garage is the last one before my garden fence. I now have the option to purchase the land outside my garage but was made aware that 50% of it has a ROW and 50% is classed as "area of common parts" (fully overgrown with shrubs, noone has aver been there).

 

I am not too fussed about the ROW or the area of common parts as I would buy the land anyway just to have clarity of ownership outside my garage. However, ideally I would like to get these two restrictions lifted at some point. Currently there is no issue with people parking there, but as the years go on and people get more and more cars, that can change. I would at least like to have the option to put a gate up in the years to come.

 

My questions is ... has anyone had any experience with getting ROW removed?

 

P.S.: Nobody has ever used that land. Not for parking, not or walking, etc. Only thing that has ever been there was my car.

[ProDave]

Extinguishing a right of way is nigh on impossible, just assume that will never happen.

 

I can't see a problem with fencing it, to prevent cars etc, as long as you provide a gate or stile to access the ROW.

 

And if it is "common parts" you probably have no right to tell anyone using it to clear off either.  But the fact it is fenced might just deter them from doing so.

[Jeremy Harris]

Just been involved in a rights of way review and survey (meant a lot of walking).  Even ROW that haven't been used for decades are near-impossible to extinguish, and very often as soon as any attempt is made to do so, one of the walkers associations, like the Ramblers, will fight it and ensure that the ROW remains, even if it is never used by anyone.

 

I'd do as @ProDave suggests, and fence it, but make sure that the line of the ROW is as close as possible to that on the definitive map.  This may be challenging, as some of the definitive maps are not well drawn.  A consequence of moving the ROW is that you can end up with two, parallel, ROW, each with equal validity.  The law is a bit odd, in that if a new route is adopted as a ROW, it can gain the same rights as the one adjacent to it on the map (we ran into this problem when trying to buy the first plot we looked at).  Also, if fencing and restricting access it's important that the class of ROW be respected.  You can't put a stile on a byway or bridle path, only on a footpath, for example.

 

I'm not sure what happens to land you buy and fence off after some time, though.  It may be that the land other than the ROW could be fenced off and if no one complains about it being fenced off you gain full rights to it, a bit like adverse possession, but applying solely to the rights of use.  I'd seek legal advice on this, and keep quiet about it, but I would imagine that the common parts right may be able to be extinguished.

[MikeSharp01]

2 hours ago, JSHarris said:

It may be that the land other than the ROW could be fenced off and if no one complains about it being fenced off you gain full rights to it, a bit like adverse possession, but applying solely to the rights of use. 

Yes this is the case. If it is not being used you can fence it off and wait 8 (might be 10 can't exactly recall) years, then you need to put an ad in the London gazzette, or local equivalent, and say that if nothing is heard from the rightful owner in 2 years you will assume it is your land. Then if nothing is heard it is yours and you can register it. First thing to do is put a watch on the portion of land at the land registry. This will trigger a message to you if anyone does a search / enquiry at LR covering the parcel in question. Beware that the local foot paths officer might drift by or, as was the case last week with our path, a local volenteer comes by with a clip board and notes any issues with the path. If the path has a number then this will trigger regular reviews of it. You should also look at local planning to see if any covenants have been placed on the path. In our case a small estate was built on the road behind ours and the footpath ran between two of the properties. As part of the planning the council made an order that the footpath should be a minimum of 6' wide.

Edited September 11, 2019 by MikeSharp01

[Temp]

I think an "area of common parts" is usually shared with other owners, for example the passage way in a block of flats. I think you would need permission from all the other owners to remove it from their deeds.

 

One possibility might be to mention to them that its overgrown and needs clearing to prevent rats. Hint that they may have to share the cost of this unless they give up their right. In practice I don't think it's easy to force them to pay for maintenance so they might see through this approach.

[Temp]

58 minutes ago, MikeSharp01 said:

Yes this is the case. If it is not being used you can fence it off and wait 8 (might be 10 can't exactly recall) years, then you need to put an ad in the London gazzette, or local equivalent, and say that if nothing is heard from the rightful owner in 2 years you will assume it is your land.

That's unlikely to work these days if the land is registered. Previously you just had to fence it off for 10 years and then claim ownership. A few years ago the rules changed so that when you try and claim (it after 10 years) the Land Registry will write to the registered owner. That owner then has 2 years to object, otherwise its yours. Problem is most people will object when they get that letter.

 

The land Registry have also started to enforce the rules more strictly. If you leave the right of way open they will say you haven't met the rule requiring it to be fenced off "to the exclusion of all others". They may also do that if you leave a gate unlocked or can't prove the gate was always locked.

[ProDave]

But the OP is not talking about pinching the land.

 

 I now have the option to purchase the land outside my garage 

 

He is merely working out how best he can or cannot use it once he has bought it.

 

 

[MikeSharp01]

3 hours ago, Temp said:

Land Registry will write to the registered owner.

Yes - I was refering to the case when there is no registered owner with the LR as was/is the case with the footpath next to our build. If there is a registered owner that is not you a new strategy will be needed.

 

[K78]

I know someone who lost there house when they tried to challenge right of way. Everyone advised him against it but the idiot insisted it was “his land”. 

[mafaldina]

Be a little careful, is it just a PROW (not a right to roam or permissive access, either end of scale), what designation? If classed as footpath/bridleway/boat you need to make it clear for access to various widths and standards (the parish council will have some responsibility too on some, if designated). I have several bridleways and a  BOAT that have been removed from the definitive map around me, relatively recently, so depending on where you are it may be possible. Your council should have an online map that shows all of them, Cornwall has and I can't believe they are the leading lights in this. Have a search on your council site for interactive map(s). [I did just check and the Wiltshire one doesn't look very good but I dined't have a postcode]

[Jeremy Harris]

I use the Wiltshire GIS site a fair bit, and it is a bit clunky, but you can zoom in to a reasonable level.  This is the link to it if it helps: http://wiltscouncil.maps.arcgis.com/apps/webappviewer/index.html?id=43d5a86a545046b2b59fd7dd49d89d22

[success1980]

Thank you all so much for your input. Just want to be a bit more precise (and I have attached a basic plan too).

 

The ROW is for vehicles and pedestrians but only for the driveway bit (blue in the plan). It doesn't lead anywhere, there is no storage, garage, footpath etc after the driveway.

The common parts area is between my driveway and the neighbour's fence. Completely overgrown and not maintained. Noone will go there and use it.

 

I will still purchase the land even with these restrictions on them. Primarily because I want to have peace of mind of owning the land outside my garage ... don't want to see the bad in people but I have recently seen an auction where someone sold the driveway network on a small estate and they then charged people to get to their garage (don't know if it has gone through or if it was illegal).

 

The main reason for trying to get these restrictions lifted is to have everything clear and clean with no conflict potential.

[Jeremy Harris]

It looks like the right of way applies just to the access to your garage, which makes things a lot simpler.  It's hard to see what the common parts provides, in terms of a benefit to anyone other than yourself.  Perhaps it's just left over from the land having either had some real purpose in the past, or just a consequence of the way the titles have been split up, perhaps. 

 

Maybe the original intention was to allow for all the users of the garages (I'm assuming that there is more than one in that row) to have access for turning etc within that area, when it extended down in front of all of them?

[ProDave]

I don't know if that plan is to scale, but having ownership of the ROW and the Common parts, would give you access to a chunk of your existing garden that to me looks big enough to build another house on?

[success1980]

That is true in theory as the plan is to scale. But I wouldn't need this land if I were to undertake a build like this as a road runs to the full frontage on the north and would serve as access.

 

The original developers have applied for two houses on this plot but that was rejected and they built one with a nice garden instead. I have no plans on building in the garden, I'd rather have a nice garden ?

[Temp]

How many people/properties have rights over the area of common parts? Is it just the person/company offering to sell it to you? 

[success1980]

I am not sure, as far as I can work out it is for everyone on the street but might have to find out more details. There is only one other property (therefore only one other garage adjacent to mine) on our end of the road. The others go to the other side from the access road. The guy on our side is cool with it, he even said once that he sees the land outside my garage as mine and he wont go or park there ... not sure if he even knows I don't actually own it yet. Haven't told him what I plan yet.