Access Rights

[hihosilver]

The house next door to us in our terrace of houses is being turned into two flats. The upstairs flat has no rear entrance.There is a long garden at the rear and there is a right of way on foot across mine an my other neighbours garden, a path between the house and the garden, to access the rear of the property if required. This is seldom used. We all have gates at either end so the access is there. We are worried that the people who rent the top flat will be crossing our property all the time to get to the garden. If the top flat does not have a rear entrance on to the garden, only a front door do they have the same rights as the people living in the lower flat who have the access to the patio & garden.

[smurfchops]

Go along to your local Council Planning Office and tell them all this, find out how the flat is being constructed and where the entrance will be. Look at the plans. Not sure if it works the same way as an extension, but it may be that you should have had a letter from the Council about these works so you could object. As I say, this may just be the law for an extension but worth contacting the Council if you are unhappy.

[boxtops]

This should be clear in the occupancy documents. When I lived in an upstairs flat, I had no right to use the garden at all, it came with the tenancy of the downstairs flat. It will all depend on the terms and conditions of the landlord (or leaseholder) of the premises next door to you. Do you know the people who are converting the property, so you could ask them?

[buildersmate]

The freeholder of the property under conversion has the legal right to use this access across your land to get to his rear garden - you admit this in your post.

So, if the upstairs flat is to be rented using a short-term assured tenancy, the landlord (as freeholder) could include the right of access to the rear garden by the upstairs tenants by including it in his tenancy agreement. Nothing you can do about that.

If the upstairs flat is to be sold leasehold (or even as a leasehold flat with a share of the freehold), the current owner can normally legally transfer with the property lease that right of garden access to that flat - if he wants to. It is more likely to occur if the upstairs flat is sold with a share of the freehold, because the whole of the plot's ground area including the garden would normally be included in the share of the freehold.

I say 'normally' because it is just conceivably possible that the easement that entitles the right of access is written in a way to make this difficult/impossible.

The fact that the flat upstairs doesn't have a direct access to this garden from downstairs doesn't change the price of fish, which is probably the real question you are asking.

Smurfchops is, I'm afraid, not correct in believing that this issue is anything to do with Planning Consent. And anyway, if Consent has already been granted ("the flat next door is BEING converted ....") it is far too late to do anything about the Planning Consent now.

[hihosilver]

Thanks for all those answers. I think I should have kept a closer eye on the planning application as it was going through. I submitted an objection but did not keep up with the proceedings. I think the owner will grant the tenants access and I just wondered whether I had any say at all. Thanks again for your information.

[joko]

could you not fence off a small pathway at the end of the garden - say 3ft wide or so, and let them go through that - that way your privacy is kept