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The risk of losing the right of way to your home

If you use a footpath or access way over someone else’s land to get to your home, you could lose the right of way to your own front door! Ask your Conveyancing Solicitor now to check whether it is mentioned in both your property title and that of your neighbours.  

New land registration rules may make it harder to prove the existence of a right of way if it has not been registered, so to take steps to have it registered.

What is a right of way?

A right of way is the legal right for the owner of one property to go across land belonging to another owner. This might be just to use a footpath, or to use a private road or access with vehicles. For a legal right to exist, it must continue to benefit the first property and adversely affect the second property, whoever owns either of them.  

Rights of way are frequently not mentioned in land registry titles. The reason for this is that the land registry has until recently adopted a very strict rules about when they would register a note of any right of way either affecting or benefiting land. But that has now changed.  

Proving the extent of a right of way

When there is a dispute over the existence of a right of way, owners who think they have a right of way may then need to take legal action. To do this they will have to prove that the right exists. But what happens when the adjoining owners deny there is any legal right.

The first step is to look at the register of both owners’ titles at the land registry. Fortunately this is not now difficult or expensive, and Conveyancing Solicitors can quickly download copies.  

If the right is clearly mentioned in both titles then the owners whose land benefits from the right of way can clearly prove its existence. The other owner would find it difficult to dispute it, and the first owners need take no further action.

Should it turn out that the right is registered against your neighbours’ property then there is no major problem, as the neighbours cannot say that they were unaware of the right. However you could ask for a note of the benefit to be registered on your own title.

But it is often the case that the right is either not mentioned on either title, or is only referred to in the title of the property which benefits from it, and not in the neighbours’ title.  

The absence of registration does not mean that a legal right of way does not exist. While such rights are frequently expressly created in a conveyance or transfer, they can also arise when they have simply been used for many years without anyone objecting.

Don’t lose your rights

If someone buys a property affected by a right of way which is not mentioned in their title, and can claim that it was not obvious on inspection when they bought the property, the property which has the benefit of the right could lose it.

In most cases the existence of a path or access-way is obvious from inspection. But this may not always be the case, especially if it is not used frequently.

So if you use a footpath or access way over someone else’s land to get to your home, ask your Conveyancing Solicitor to check that a right of way is registered on both property titles.

Fridaysmove will be pleased to provide further help, contact us now on 0800 038 6446 for more information.

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