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 a right of way be changed?
A right of way contained in a deed will generally remain 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 Deed of Variation would need to be agreed and signed by the person with the benefit of the right of way. 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 wish to be paid to vary the right of way. 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 on the right of way because it blocks their vehicular access?
This one is a bit trickier. The neighbour is allowed to use the right of way with or without vehicles. There is no problem with the parked cars when it comes to the right of way on foot, but you would have to move your car on request to allow the neighbour to use the right of way with a vehicle.
If the neighbour raised an objection to you parking your car there at all, on the basis that 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’ with the right of way. 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 the right of way.
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 on the right of way, 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 email@example.com.