How Is It Determined Who Owns A Right Of Way On Land?

Scenario :
Property 1 sections off part of its garden and builds Property 2 and creates a separate title for Property 2. 14 months after purchasing Property 2 the owner wants to sell Property 2 but a problem surfaces regarding a right of way on Property 2 which is said to belong to the owner of Property 1. This ROW is shown to be within the Property 2 boundary and also on the adjoining farm land – a fence separates the ROW between these 2 bits of land. Property 1 has since been sold to someone else in 2018.
Property 2 solicitors for sale of property maintain that the ROW belongs to the original owners of Property 1 even though they have sold that property. The owners of Property 1 built Property 2 on top of the ROW. The width is at most, 3 feet at the front tapering to zero feet at the rear which backs onto a brick wall – there is no access to anything from the ROW on Property 2.
The Land Registry advise that a ROW belongs to the property and not a person. What I am trying to understand is this :
If Property 1 was sold in 2018 then is it the case that the ROW now belongs to the new owner and not the original one?
If, however, it is suggested that the original owners of Property 1 retained the ROW on both Property 2 and the adjacent farm then how does that work? Does that mean that they sold Property 2 excluding the land that had the ROW on it even though the new title created for Property 2 shows the ROW within the boundary of Property 2 which Property 1 sold to the owner?
There are rights over Property 2 for the benefit of Property 1 (“Rights Reserved for the Benefit of Other Land”) but these relate to having access for the specific purposes of such things as utilities, media, cleaning – they are specifically defined. I do not believe that these constitute the issues relating to the ROW.
Having sold Property 2 with the ROW could it be the case that the land that has the ROW and which is within the boundary of Property 2 should / would have transferred to Property 2 but the part of the ROW that remained on the adjacent farm still belonged to the original owner of Property 1 unless they signed over that title to someone else as a separate transaction?
I appreciate this may appear a bit complex but I am struggling to get my head round these issues and my current solicitor is not helping!
Thank you

3 Answers

HMLR (HM Land Registry) is correct that unless the covenant is expressed to be personal (which is exceptionally rare) it belongs to the property not the person. It therefore passes to the new owner. If a property is split into two it usually passes to both of them so both would have the right of way (assuming the deed granting the right benefitted the whole of the property). Best practice is to expressly refer to the right in the TP1 (transfer deed) on sale.

www.notaryexpress.co.uk

Thank you

thanks