Legal expert Mark Morton offers advice to a couple who have found their dream home but have discovered there is a right of way running through the garden. Are there any risks and is it mortgageable? We find out
The Question
My husband and I are first-time buyers and we’ve found a beautiful Victorian terraced house in a village and it’s a dream of a property. Except there is, of course, a catch. We have been told by the estate agent there is a right of way which passes through the back of our garden – right next to our back door.
The strange thing is, no one could access the right of way because it’s not obviously a path of any kind. However, my parents think there may still be ‘issues’ around it and a mortgage lender might not be keen to lend on this.
We would like to ask your solicitors if they have come across this before and if they would recommend we go ahead and buy the home or should we walk away? We love the home so much but don’t want to open a can of worms for ourselves further down the line.
Mark’s Answer
The presence of a right of way on a property means that a third party has a legal right to use a specific portion of the land for a defined purpose, such as access. While this can sometimes raise concerns for buyers, understanding the nature and implications of the right of way can help you make an informed decision.
Here are some key considerations and steps to take:
1. Check the legal documents
Start by reviewing the property’s official title documents, which can be obtained from the Land Registry for a small fee. These documents will confirm whether the right of way is formally registered and its exact terms.
The right of way could be explicitly detailed in a lease, transfer deed, or another document, and it will likely appear on the title register if it is a legal interest in the land.
2. Investigate usage history
Speak with the current owners to determine whether the right of way has been actively used during their ownership. If it has seen little to no use, it might indicate that the easement has minimal practical impact.
However, keep in mind that just because it is unused now doesn’t mean it won’t be used in the future.
3. Impact on your enjoyment and privacy
Consider the proximity of the right of way to your back door and how its potential use might affect your privacy and enjoyment of the property.
Even if the path is not currently visible or well-trodden, the right still exists and future users could assert their access.
4. Mortgage lender considerations
Some lenders may be cautious about lending on properties with rights of way, especially if they run close to the house. Check with your mortgage adviser or lender to ensure that this will not pose an issue.
5. Options for managing the right of way
While easements are typically permanent, there are rare circumstances where they can be extinguished or modified:
- Formal Release: The easement holder can agree to release the right of way, formalised through a deed. However, this requires their cooperation and is often not feasible unless the right is unused and unneeded.
- Negotiation: If the easement is problematic, you might negotiate with the holders for a different arrangement, though this could involve legal and practical complexities.
6. Seek professional advice
This is a complex legal area, and we strongly recommend engaging a lawyer with expertise in property law to assess the right of way and its potential implications.
Your lawyer can provide tailored advice after reviewing the title documents and any associated agreements.
Ultimately, whether to proceed with the purchase depends on your comfort level with the risks and your ability to address them.
If you love the property and the practical impact of the right of way seems minimal, it may still be a worthwhile purchase.
However, if you feel uncertain or anticipate significant issues, walking away might be the safer choice to avoid complications down the line.
Mark Morton is a residential conveyancer at Parfitt Cresswell (Banstead Office)
Meet our expert
Mark Morton is a residential property licensed conveyancer for Copley Clark (the trading name of Parfitt Cresswell). He has a career spanning two decades and joined Parfitt Cresswell in February 2020.
If you would like to ask him or one of his colleagues a legal question connected to your home or related finances email kate.saines@emap.com
