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An outstanding right of way which has fallen out of use and been obstructed for many years might not seem like the type of issue that would cause a dispute between neighbours. That is, until one party wants to start using it again. This was exactly the case in this recent claim, where the route of a historic right of way granted across two properties was suddenly brought back into focus when a neighbour sought to use it again, leading to a long-running dispute that put our claims team’s expertise to the test.

Time to sell

In June 2011, we were contacted by solicitors acting for their client, a developer, who had purchased some land behind a row of terraced houses in 2002. Having built two residential dwellings on the site (11A and 11B), the developer was now selling them. However, title investigations had revealed that one of the terraced houses (no.13) still held a right of way that had been granted when it was sold in 1982, over land which now formed the private driveway, parking and landscaped amenity space created for the new properties.

Knowing how difficult it is to extinguish a right of way simply due to abandonment, a key consideration for our underwriters was how long it had remained unused, and what proof there was to establish this fact. The developer’s solicitor reported that it hadn’t been used for around 20-25 years and a statutory declaration from the developer confirmed that the site had been fenced off for eight years, and that no one had attempted to exercise any rights of way over the land during this time. Photographs from 2003 and 2010 showed the overgrown state of the site, indicating that the right of way had clearly not been in use for some time. In addition, pictures of the current driveway and access route from the main road showed two established trees across the right of way, making it impossible for no.13 to use.

As there had been no relevant objections or issues raised at any stage of the purchase, planning application or construction, and no contact from any of the neighbouring properties regarding the right of way, we were happy to issue an Obstruction of Rights policy covering both properties for £505, with a policy limit of £200,000.

We’ve got mail

Almost ten years later, in June 2021, we were contacted by the owners 11B. They had received a letter from solicitors acting for the owners of no.13, who were seeking to exercise their right of way which they claimed was being obstructed by a locked gate on the private driveway of 11A and 11B. The letter stated that the right of way would be further blocked and encroached on by a proposed garage and additional parking space, which the owners of 11B had submitted a planning application for. It requested amendments to the plans to remove the obstruction, and asked for a key fob for the gate to access their right of way. It seemed that no.13 wanted to reinstate the right of way to help facilitate some proposed rear extension works, which meant they needed access to the rear of their terraced property.

Our claims team quickly began assessing the details of the case. It was clear that the main obstruction to the right of way had existed at the time the policy was issued and had remained unchanged, with the right of way clearly not having been exercised by third parties for many years. Plus, it didn’t appear that the submission of 11B’s planning application itself had revealed the historic right of way. We therefore confirmed cover for the claim, but as the policy had been issued to cover the footprint and layout of the properties as they had existed in 2011, explained to our policyholder that we couldn’t cover any losses that arose from their proposed works. They were happy with our approach, and decided to put their plans on hold until the dispute was resolved.

A legal tangle

We arranged for a response to be sent to no.13 and their solicitors, confirming that the plans for the proposed garage and parking had been put on hold. We also sought to set out the position that the right of way had only remained on the Land Registry title in error, as it appeared from the rest of the title documentation that the right of way should have been extinguished following a previous sale of no.13. We advised that the gates were on land still owned by the developer, so we wouldn’t be able to provide a key fob; and finally made the point that the presence of two mature trees made the right of way practically impossible to use, as well as it being too narrow for any vehicle to use without trespassing on land they had no rights over. 

Slow progress

While waiting for a response, we appointed one of our panel solicitors to further consider the legal position, and they advised that the owners of no.13 were in the stronger legal position. Rights of way aren't legally extinguished simply through lack of use over the passage of time, and it would be difficult to prove that the burden of the rights had only been left on the Land Registry title in error. We concluded that obtaining a Deed of Release was the best option for our policy holder, but any resolution would also depend on the response from no.13.

Over the following 18 months, communication continued but without much progress. Our policyholders were unwilling and unable to reinstate the neighbour’s right of way, while no.13 insisted the right was binding and that they intended to use it – though they took no practical steps to do so. They also wrote to the owners of 11A with the same demands. As their property was also covered by our policy, we picked up their dispute as part of the same claim.

Then in January 2023, no.13 instructed new solicitors who took a more pragmatic approach. While still maintaining their client's entitlement, they opened up the possibility of finding a negotiated solution. This was real progress and we sought to open negotiations – only to receive no response for another six months. When a reply finally arrived, it reiterated no.13's preference to retain (and reroute) the right of way, but crucially, it went on to indicate that, as an alternative, their client would be willing to accept £80,000 to provide a full release of the rights.

Assessing the value

Instinctively, this figure seemed excessive, and we set about determining the real value of the right of way. A surveyor was commissioned to assess the potential loss in value to both 11A and B if the right of way was reopened, both for pedestrian use only, and for vehicles. Based on the resulting lack of privacy, the report found that the combined loss of value across both properties would potentially be around £45,000. They also provided an assessment of any potential loss in value to no.13 without the benefit of the legal right of way, and this was calculated to be up to £15,000. With this in mind, we felt an offer of £15,000 was reasonable.

That offer was rejected, so we commissioned further research, in the form of a ‘swept path’ analysis, to conclusively demonstrate the types and sizes of vehicle that would be capable of navigating the claimed right of way. It found that only an "ultra-small car" (e.g. a Smart ForTwo) could manoeuvre from the main road to the rear of no.13 and back out, and even then, only with a five-point turn. Even a Mini would be too large for no.13 to manoeuvre without crossing land they had no right to.

The winning hand

Armed with these findings, we detailed the limitations of any practical and economic value of the claimed rights to no.13 and offered £25,000 for their full release. Happily, a month later, no.13 agreed to accept £30,000 plus legal costs to release the right of way. After years of stalemate and protracted negotiations this was a significant climbdown from their opening figure, and we accepted the proposal. The policyholders were delighted to finally be able to resolve the dispute without the right of way being reinstated, avoiding any impact on the value of their properties, and without having to make any alterations to accommodate the right of way.

Taking almost five years of legal argument to resolve, this claim shows just how difficult it can be to prove abandonment and extinguishment of a right of way, no matter how long it has fallen out of use for. With substantial legal costs incurred in defending and settling the legal dispute, the total cost paid out to fully resolve the claim was just under £100,000 – and all for a policy that cost £505 to cover the two properties affected. And throughout a long and complicated negotiation, our policyholders benefited from our team's experience and our ability to bring in specialist legal advisors and surveyors, ensuring they remained in the strongest possible position to resolve the claim.