buying house with right of way

dublin2000

Not sure if i'm posting in the right section about my question.


We're looking at a house that have the following two issues (which i consider it as):

- it is leasehold title ( i'd like a freehold title house)
- it has a right way with neighbour's over the side access - what i understands is that there is shared access to allow this house and their neighbour move between the sides of both houses. Think that if you are looking at 2 semi-d houses.

I'm hoping some advice on this two issues:

- Do you have automatic entitlement to buy out the leasehold?
- I clearly remember at the time of house viewing there was a permanent wall in between the two houses from the front garden right through to the end, why there is a right of way? If it is only because the wall wasn't there at the start of the build which means deed isn't reflecting the current reality so not reflecting what i think i'm buying, can i get this right of way extinguished and deed amended to reflect?

thanks

coylemj

You can't get a right of way extinguished simply because you disagree as to why it was established in the first place.

Graces7

Be wary of involving with right of way issues in Ireland. The first thing to ask is is there a right of way..then no way!

Am in the middle of the fifth right of way issue in less than ten years.

No you cannot get it extinguished and yes someone will fight for it

At one house it was in fact defunct through lack of use; even had trees growing in it but still the old man fought a bitter and aggressive battle over it.

These things are minefields and legal costs will reflect that.

GerardKeating

coylemj wrote: »

You can't get a right of way extinguished simply because you disagree as to why it was established in the first place.

Can one "buy out" a right of way ???

GusherING

dublin2000 wrote: »

Not sure if i'm posting in the right section about my question.


We're looking at a house that have the following two issues (which i consider it as):

- it is leasehold title ( i'd like a freehold title house)
- it has a right way with neighbour's over the side access - what i understands is that there is shared access to allow this house and their neighbour move between the sides of both houses. Think that if you are looking at 2 semi-d houses.

I'm hoping some advice on this two issues:

- Do you have automatic entitlement to buy out the leasehold?
- I clearly remember at the time of house viewing there was a permanent wall in between the two houses from the front garden right through to the end, why there is a right of way? If it is only because the wall wasn't there at the start of the build which means deed isn't reflecting the current reality so not reflecting what i think i'm buying, can i get this right of way extinguished and deed amended to reflect?

thanks

You don't have an automatic right to buy out a freehold. You must meet all of the conditions in s.9 and any one of the conditions in s.10 of the Landlord & Tenant (Ground Rents) (No.2) Act 1978 in order to be able to acquire the freehold. Admittedly, these are pretty broadly drafted so it should be possible at some stage to do.

However, if your solicitor is looking at the title deeds and is satisfied the lease is good and marketable title, I wouldn't be too worried about this.
He or she will also be better placed to advise as to whether the lease would be eliglble under the Ground Rents legislation.

Also, buying out the freehold won't automatically end the right of way issue btw.

dublin2000

Hi Graces7, thanks for your reply.

What type of ROW issue you had/having? is it the same as the one i'm describing - which is a particular ROW in the shared side access area between two houses?

Graces7 wrote: »

Be wary of involving with right of way issues in Ireland. The first thing to ask is is there a right of way..then no way!

Am in the middle of the fifth right of way issue in less than ten years.

No you cannot get it extinguished and yes someone will fight for it

At one house it was in fact defunct through lack of use; even had trees growing in it but still the old man fought a bitter and aggressive battle over it.

These things are minefields and legal costs will reflect that.

Graces7

dublin2000 wrote: »

Hi Graces7, thanks for your reply.

What type of ROW issue you had/having? is it the same as the one i'm describing - which is a particular ROW in the shared side access area between two houses?

No not the same this time..BUT it seems that in Ireland folk will defend any ROW ( interesting acronym..) to the death.

When I was last seeking a rental the first question i asked was is there a ROW or wayleave anywhere near... In one the farmer had a wayleave to use the drive to the cottage and the yard in front as a marshalling yard for his cattle.

Here it is not my battle but the landlord's but is having a bad effect on the house as it is the access road.

By challenging the ROW where you are thinking of buying you well open a can of worms. Best to see how intrusive the ROW may be. In the last house the old man had forgotten the row existed until I arrived.

Peregrinus

Graces7 wrote: »

No not the same this time..BUT it seems that in Ireland folk will defend any ROW ( interesting acronym..) to the death.

Well, of course they will. The right of way exists for the benefit of their property, to improve its utility, and typically will enhance the value of their property. Why would they give it up? This isn't altered by the fact that, at any particular time, they might not be using the right of way. They might want to use it later. Or - more to the point - a prospective purchaser might want to use it.

They won't give it up, but they might be prepared to sell it if you offer them an amount which they think exceeds the amount by which the continued existence of the right enhances the value of their property. But, in general, people will think carefully before accepting an unsolicited offer for their property, and if this is no different if their property happens to be a right of way.

Graces7

Peregrinus wrote: »

Well, of course they will. The right of way exists for the benefit of their property, to improve its utility, and typically will enhance the value of their property. Why would they give it up? This isn't altered by the fact that, at any particular time, they might not be using the right of way. They might want to use it later. Or - more to the point - a prospective purchaser might want to use it.

They won't give it up, but they might be prepared to sell it if you offer them an amount which they think exceeds the amount by which the continued existence of the right enhances the value of their property. But, in general, people will think carefully before accepting an unsolicited offer for their property, and if this is no different if their property happens to be a right of way.

This is not accurate. In the last case I was involved in the row was defunct through lack of usage. had trees growing in it. It had been the access lane to a house (pedestrian only) then a new access road for vehicles was built up the road. So no longer needed or used Was just sheer cussedness, as it led from the grounds of the house I was renting.

Each case is different and rows do fall into beiung defunct if not used over a period.

And in Ireland folk hang on and on and on to mere inches of land

Beano

Graces7 wrote: »

This is not accurate. In the last case I was involved in the row was defunct through lack of usage. had trees growing in it. It had been the access lane to a house (pedestrian only) then a new access road for vehicles was built up the road. So no longer needed or used Was just sheer cussedness, as it led from the grounds of the house I was renting.

Each case is different and rows do fall into beiung defunct if not used over a period.

And in Ireland folk hang on and on and on to mere inches of land

Can a right of way become defunct through lack of use?

Five Lamps

Well you do see notices in the paper to extinguish rights of way. It's mainly by councils but I'm sure it can be done.

However, since you have to supply notice of intent you are probably waking the sleeping beast.

dublin2000

Thanks for all the replies.

Just to be clear, I'm talking about a specific ROW between two semi-detached houses, not a public one. So it is only between two parties. I can fully understand there are people who just want to keep it for the sake of keeping it, but I wouldn't understand it. Is it not better for both houses to have a clearly draw up boarders between the two houses, like half and half, each own their own way? And this is the current situation in the house, there is a wall separating the access to half and half, each house has their own side gate.

Beano

Five Lamps wrote: »

Well you do see notices in the paper to extinguish rights of way. It's mainly by councils but I'm sure it can be done.

However, since you have to supply notice of intent you are probably waking the sleeping beast.

but wouldnt that be for public rights of way? Sure the council can't extinguish a privately established right of way?

Pat Mustard

Beano wrote: »

Can a right of way become defunct through lack of use?

S.39 Land Law and Conveyancing Reform Act 2009.

Beano

39.— (1) On the expiry of a 12 year continuous period of non-user of an easement or profit à prendre acquired by—


(a) prescription, or


(b) implied grant or reservation,


the easement or profit à prendre is extinguished except where it is protected by registration in the Registry of Deeds or Land Registry, as appropriate.


(2) This section applies to extinguishment of an easement or profit à prendre notwithstanding that it was acquired before the commencement of this Chapter, provided at least 3 years of the period of non-user occur after such commencement.


(3) Nothing in this section affects the jurisdiction of the court to declare that an easement or profit à prendre, however acquired, has been abandoned or extinguished.

Section 1 talks about 12 years non-use and section 2 says 3 years. Why the difference? Does section 1 say that an easement cannot be extinguished if it registered irrespective of the period of non-use?

234

Beano wrote: »

39.— (1) On the expiry of a 12 year continuous period of non-user of an easement or profit à prendre acquired by—


(a) prescription, or


(b) implied grant or reservation,


the easement or profit à prendre is extinguished except where it is protected by registration in the Registry of Deeds or Land Registry, as appropriate.


(2) This section applies to extinguishment of an easement or profit à prendre notwithstanding that it was acquired before the commencement of this Chapter, provided at least 3 years of the period of non-user occur after such commencement.


(3) Nothing in this section affects the jurisdiction of the court to declare that an easement or profit à prendre, however acquired, has been abandoned or extinguished.

Section 1 talks about 12 years non-use and section 2 says 3 years. Why the difference? Does section 1 say that an easement cannot be extinguished if it registered irrespective of the period of non-use?

S.39(2) is a transitional provision. It is there to make sure that back in 2009 people didn't jump on the bandwagon and try to extinguish easements.

What should be noted is that this section doesn't apply to an easement by express grant.

Beano

234 wrote: »

S.39(2) is a transitional provision. It is there to make sure that back in 2009 people didn't jump on the bandwagon and try to extinguish easements.

What should be noted is that this section doesn't apply to an easement by express grant.

ah right, that makes sense.

Valentine1

dublin2000 wrote: »

Not sure if i'm posting in the right section about my question.


We're looking at a house that have the following two issues (which i consider it as):

- it is leasehold title ( i'd like a freehold title house)
- it has a right way with neighbour's over the side access - what i understands is that there is shared access to allow this house and their neighbour move between the sides of both houses. Think that if you are looking at 2 semi-d houses.

I'm hoping some advice on this two issues:

- Do you have automatic entitlement to buy out the leasehold?
- I clearly remember at the time of house viewing there was a permanent wall in between the two houses from the front garden right through to the end, why there is a right of way? If it is only because the wall wasn't there at the start of the build which means deed isn't reflecting the current reality so not reflecting what i think i'm buying, can i get this right of way extinguished and deed amended to reflect?

thanks

This is not advice and you should speak to your solicitor further about your concerns, they will be happy to speak to you about them.

the Leasehold isn't an issue so long as your solicitor is happy that it is a marketable title (usually a Lease with at least 70 years left on the Term). If the property is in a development of houses the Lease may contain restrictive covenants (and allow you to enforce similar covenants against your neighbours). Having said all that if the lease has hundreds of years left on the term as they more often than not do, there is no practical difference between a leasehold and freehold title.

As stated earlier in the thread it is possible that you may have the right to buy out the freehold but it is not automatic.

The right of way is another matter entirely, if I understand what you have set out correctly there is a shared access between two houses that allows side access to the back gardens? Is the access narrow? In these circumstances it is very possible, in fact likely that your property has a reciprocal Right of Way over your neighbour's property. The idea being to stop the owner of either property preventing or limiting the other's access to it's back garden.

In such circumstances where the ROW was expressly granted I would think that extinguishing it would be neither possible or advisable. You should of course seek the advice of your solicitor with regard to all of these points.

Its worth pointing out that a Right of way does not affect or vary boundaries or the limits of the property and it does not mean that the boundaries of the property are unclear. What it does mean is that the owners of the house next door have the right to cross or travel over that boundary and that you may not prevent them from doing so.

Graces7

Beano wrote: »

Can a right of way become defunct through lack of use?

According as we learned later to the old mans solicitor when he first asked him yes and also according to our own barrister later. ie Yes

I think they call it falling into desuetude.

May differ if it is actually through the property or beside it.

In this case it has not been used for around 20 years and was no longer needed and the old man would have had to go to court to regain it and it would probably not have been allowed as it was no longer needed.

Graces7

Five Lamps wrote: »

Well you do see notices in the paper to extinguish rights of way. It's mainly by councils but I'm sure it can be done.

However, since you have to supply notice of intent you are probably waking the sleeping beast.

We did that simply by putting a gate across our driveway... Old man would come along with a hammer and smash the locks etc. Used the driveway as his bathroom a few times too. Tried to block the drive with tree branches,, wired the gate up to the electric fence..Smashed garden furniture...