The previous owner of our house ceded all of the shared driveway to our neighbour. Does our neighbour have rights to it as it is over a decade later?

February 2014

Question

In my area we all have shared driveways and because the man who lived in our house before us built a wall around his front garden he ceded all of the shared driveway to our neighbour, making our front area smaller than it should be. When we moved in over a decade ago we were going to knock down the wall and look into building a wall up the centre of the shared driveway so we each got an equal amount and we had proper access to the side gate into our back garden (we have to hop over the wall and loop back to get to it).

Anyway, we never did anything about it in the end because while our neighbour (an elderly man who lives on his own) was agreeable in principle he would have had to move the pillar into his front garden and the pavement outside would have had to be dished to allow him to drive in. Most people on the road did this (the dishing) without planning permission but he was insistent we do it properly. We are wondering because he has had use of it for so long if he actually has rights to the driveway by now? I assume we would carry the costs of moving his pillar and any other associated works?

Very few people in the area use the shared driveway as it was originally intended, most have either divided it up with a wall or have paved over the entire front and have a massive shared driveway between the two houses. Also, a question I’d like to ask is if we don’t do anything about it, could it become an issue if we decide to sell the house?

Answer

Shared driveway issues tend to become problematic if they are not used as originally intended.

Such issues become more complex with the passage of time, in particular if there has been a change of ownership to one or both of the properties. This appears to be the situation in your case.

The usual arrangement is that the title in each property extends to the centre of the driveway. Each party has a right of way over the part of driveway on the adjoining property. You should check your deeds to confirm this. If it has not been formally ceded to him, your neighbour would need to have uninterrupted and unchallenged possession for 12 years before he could claim adverse possession. Your use of part of it would weaken his claim. Adverse possession is a complex issue and you should seek legal advice if it arises.

However, you state that your neighbour is agreeable in principle. You may not have a problem in achieving your objective if you remain on friendly terms and cooperate by carrying the costs of the work involved. He is correct in saying that you should do it properly, as the footpath is part of the public roadway. A road opening permit from the local authority is required for a minor extension to the dished portion, and possibly planning permission — depending on its extent or proximity to a junction etc.

If one or both properties are registered you should check with the Land Registry to ensure that revisions to the ordnance survey map, on which the Land Registry map is based, have not resulted in realignment of the registered boundary to the garden wall. It is, however, a “non-conclusive” boundary system.

You will need to formalise any revised arrangement and have the rights of ways removed as burdens from the respective Land Registry folios.

If not regularised, it is likely to become an issue if selling the house. All such issues affecting your title must be addressed when the purchaser’s solicitor requests the vendor’s solicitor to complete an “Objections and Requisitions on Title” document, prior to sale.

Patrick Shine