Finding there’s a restrictive right of way on a property you want to buy can cause complications.
A client recently asked us for help with a house he wanted to buy. The house was perfect except for one thing: his neighbours had a right of way across the property. This included access for their vehicles, across the area where he wanted to park his car. Could he change the right of way?
It’s a problem that arises more frequently than you might think. When we looked into this specific case, a number of issues came up that may help others in this situation. But first …
What is a right of way?
A right of way is a type of easement, giving someone rights over another person’s land. They are often granted when a large property or piece of land is divided into smaller plots and one of the owners needs access to the road, for example. In many cases, all parties are happy with the arrangement and it causes no problems. But what may be perfectly acceptable to one owner can cause problems when the property changes hands.
Can I change a right of way?
A right of way contained in a deed generally remains exactly as it is written.
It is technically possible for a right of way to be extinguished because it has been abandoned. However, this is an extremely hard case to make.
A right of way can be varied with the agreement of the person who has the benefit of it (i.e. the neighbours).
Our client needed answers to these questions:
Could I approach the current neighbours and seek to amend this right of way?
A right of way can be varied by using a Deed of Variation. The person with the benefit of the right of way would need to agree and sign this deed. However, your neighbour does not have to agree to this and if they do not agree, there is no way to force them to vary it.
Your neighbour may want payment to vary it and this would be something to negotiate with them.
The current neighbours only use the right of way for their bins, so there is currently no problem parking a car there. If I went ahead and purchased the property and the neighbours changed their minds, or there are new neighbours, does it mean that I may not be able to park my car there because it blocks their vehicular access?
This one is a bit trickier as the neighbour can use the right of way with or without vehicles. There is no problem with the parked cars when it comes to foot traffic, but you would have to move your car on request to allow the neighbour to use it with a vehicle.
The neighbour could raise an objection to you parking your car there, as it interferes with the right of way. This is an issue that could ultimately only be settled by the court. The court would have to decide whether blocking the right of way with a parked car amounted to ‘substantial interference’. They would look at all the circumstances such as whether the right of way can still be used or if it is now more inconvenient for the person to use it.
So to sum up, the neighbours may be prepared to vary the right of way, but they don’t have to. If they or any future neighbours object to you parking your car there, they may have an argument. Only a court could decide the issue for certain.
If you need advice on this or a similar issue, we’re happy to help. Call us on 0114 249 6926 or email firstname.lastname@example.org.