Access/easements

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YorkshireCottage
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Access/easements

Post by YorkshireCottage » Fri 11th Dec, 2020 8:38 pm

Hi
Apologies in advance for what will no doubt be a long and complicated post. We're buying a house which is accessed via a track from the main road. The track crosses registered Common Land. There is no other access to the house. So, here's the thing - there's nothing in the deeds to give us a right of access over the track. The vendor's family have lived there for generations, have used the track without issue over that time, and have signed a Statement of Truth that will allow us to apply to the Land Registry for a prescriptive easement.

Our solicitor is having kittens at the thought of no access, despite our reassurances that it's been like that for decades and is very very unlikely to ever change. His worries have set mine off, where normally I would just think "meh", I'm now thinking not only "but what if.." but also "what happens if we apply for an easement and don't get it, and then can't get an indemnity policy, and then the landowner removes the track?

Does anyone have any experience of applying to the Land Registry? Do prescriptive easements (based on long term use) generally get granted?
Would you buy this house? It's perfect, untouched, and a bargain. It's taken months to get to this point, and is still causing us sleepless nights. Any advice/commiserations welcome :)
Last edited by YorkshireCottage on Mon 14th Dec, 2020 6:34 pm, edited 1 time in total.

CliffordPope
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Re: Access/easements

Post by CliffordPope » Sat 12th Dec, 2020 10:09 am

YorkshireCottage wrote:
Fri 11th Dec, 2020 8:38 pm

Would you buy this house?
No! Unless I had so much money that I was willing to gamble it on the risk of buying a worthless house. Presumably that's why the house is so cheap?

I'd tell the sellers to get the easement sorted themselves or you are pulling out.

Feltwell
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Location: Shropshire, England

Re: Access/easements

Post by Feltwell » Sat 12th Dec, 2020 10:39 am

I think this is one where you definitely need the advice of the professionals, rather than t'interweb! Though you do have to bear in mind that the professionals are 100% risk averse, *just* in case they ever get any comeback.

We had a more minor situation here, the access from a side road onto our back garden - a strip that cuts across the back of a neighbours garden, that is fenced off as if it is our land - the ownership of it is not clear. Land Registry clearly shows that half of it is ours. It's clearly come up before as amongst the legal papers were documents for every sale back to 1960, a signed statement for each saying that the owner has had free & unimpeded access. Our solicitor was jumpy but we took the decision to go ahead anyway, as whilst it would be an inconvenience if we lost it it's a rarely used access - in fact when we bought the house it was fenced off, I've since put gates in.

Have you contacted the Land Registry? Be interesting to hear if they've got any guidelines to what they require to grant an easement.

a twig
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Re: Access/easements

Post by a twig » Sat 12th Dec, 2020 1:27 pm

Handy guidance note here:

https://www.oss.org.uk/vehicular-access ... ge-greens/

Doesn't seem to much of an issue to me?

Basically it says that you don't need an easement anymore, you can just register the access with the land registry provided you have long term proof of use, you don't even need landowners permission.

a twig
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Re: Access/easements

Post by a twig » Sat 12th Dec, 2020 1:37 pm

We live on a common, and the legal niceties around living on the common here grant us as residents vehicular access rights, grazing rights etc so worth checking that.

masochists-r-us
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Location: Northamptonshire

Re: Access/easements

Post by masochists-r-us » Sun 13th Dec, 2020 9:00 am

We went through exactly this some years ago. Our house can only be accessed with vehicles via a track largely owned by a neighbouring property. Our solicitor obtained Statutory Declarations from the vendors who had been using the access unimpeded for many years and got this accepted by the Land Registry before we completed our purchase. My advice to you would be to make sure you have a very good / specialist solicitor and that they get you good and solid title before you go ahead. No one in their right mind would proceed without at least some positive indication from the Land Registry first, but they’re not easy to deal with and their wheels turn slowly so it took 8 months from getting our offer accepted to moving in.The legal bill was also higher than average, but in the end worth every penny. Good luck. Hope you get it.

Pennyviz
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Location: Wick, BS30

Re: Access/easements

Post by Pennyviz » Sun 13th Dec, 2020 2:39 pm

In our last property we had vehicular access over Petersham Common by prescriptive ROW. In the old days they wouldn't have bothered with asking and the whole point of a right of way is that permission is not given as I understand but gotten through use over 20 plus years. Certainly not unusual but best to talk to a solicitor who knows about these things, if yours is getting freaked out maybe get a second opinion.

george2019
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Re: Access/easements

Post by george2019 » Wed 16th Dec, 2020 3:52 pm

Not sure how someone could stop you from accessing your own home.

My sister came across this issue and didn't buy the house, however imo it was the solicitor covering themselves in the unlikely situation something could go wrong, rather than an actual opinion that it would. The only actual problem is trying to sell in the future, practically there was no problem. But... it wasn't my money...

steveb
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Re: Access/easements

Post by steveb » Thu 17th Dec, 2020 9:29 am

I think this is more common than you expect, especially for rural properties.

My solicitor was pretty chilled - access went down an unadopted highway, and then over some private land - some registered and some not. we got a declaration from the previous owner and a (£150) insurance policy that covered the loss in value should access be denied. We never bothered registering the access.

Coming to sell it earlier this year, the buyers solicitor had kittens and told the mortgage company who I half-expected to use any excuse to run away during a pandemic - but all they wanted was the same. statement of truth, insurance policy.

If a bank is happy to lend on it, then I am happy to buy it. Your risk profile might vary but I would buy first and then register the right of way after.

Flyfisher
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Location: Norfolk, UK

Re: Access/easements

Post by Flyfisher » Thu 17th Dec, 2020 1:06 pm

About a decade ago there was some sort of legal deadline by which various unregistered rights had to be registered or they would be forfeited. It may have been in the wake of the chancel liability issues that were big news around that time, though I'm not really sure of the details.

What I am sure about is that as a result of this deadline, someone tried to register the unregistered-at-the-time top half of our lane that joined the public road and would have succeeded if we had not fought him off! Basically, some chap who happened to live in Wales had been buying up Lord of the Manor titles around over the country and using them to claim ownership of any piece of unregistered land within the manor. In our village there were numerous small bits of unregistered land, many of which were grass verges alongside roads and this 'Lord' made applications at Land Registry for first registration on the basis that since there were no known owners, his was the best 'title'. Fortunately, we were able to prove our ownership of our unregistered lane using our deeds and a few letters put an end to his claim and we subsequently registered it in our own names.

However, he was successful in registering various bits of land in and around the village, including some strips of grass verge and driveways in front of a few houses. I don't know the details of why these registrations were not successfully challenged but they weren't and he became the legal owner. He then proceeded to write to affected properties pointing out his 'ransom strips' and proceeded to demand money in exchange for a right of way over his land. The village grapevine said that one elderly couple paid him around £10k for the right of way over his land because they did not want to get involved in a legal battle.

In our case, even had he successfully registered the top half of our lane, the bottom half was part of the house title and this clearly defined our right of way over the entire lane regardless of ownership, so he could never have pulled the 'ransom-strip' scam on us, but it's a sobering thought that without a legally-defined right of way to a public road enshrined in the title of a property, there is always the risk of suddenly having access rights challenged. After a long period of historic use it may well be possible to dispute any such restriction or claim for payment, but who wants to be drawn into such a legal argument?

Caveat emptor indeed.

Flyfisher
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Re: Access/easements

Post by Flyfisher » Thu 17th Dec, 2020 1:14 pm

steveb wrote:
Thu 17th Dec, 2020 9:29 am
I think this is more common than you expect, especially for rural properties.

My solicitor was pretty chilled - access went down an unadopted highway, and then over some private land - some registered and some not. we got a declaration from the previous owner and a (£150) insurance policy that covered the loss in value should access be denied. We never bothered registering the access.

Coming to sell it earlier this year, the buyers solicitor had kittens and told the mortgage company who I half-expected to use any excuse to run away during a pandemic - but all they wanted was the same. statement of truth, insurance policy.

If a bank is happy to lend on it, then I am happy to buy it. Your risk profile might vary but I would buy first and then register the right of way after.
I've often wondered how useful 'indemnity policies' are in practice. In this case, what would happen if access really was legally denied? Perhaps physically by the landowner building a fence or even digging a deep trench? The property would have no public access, it's value would (presumably) plummet and the policy would (hopefully) pay out the loss of value. Fine, but it wouldn't solve the problem of having no public access! I guess the best outcome would be if the property was deemed to be worthless so that the policy paid out enough to just abandon it and move somewhere new.

I know we all like to moan at solicitors for being so picky about remote possibilities, but when they actually happen . . .

steveb
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Re: Access/easements

Post by steveb » Thu 17th Dec, 2020 1:44 pm

I suspect these policies work on the basis that they know they will never have to pay out... if you have a declaration covering (20?) years then you have a prescriptive right of way , whether the owner likes it or not and whether registered or not.

Flyfisher
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Re: Access/easements

Post by Flyfisher » Thu 17th Dec, 2020 2:16 pm

Well firstly, even if that is true it wouldn’t necessarily prevent a legal battle with a determined landowner. Who was it who said ‘when things get to court, both sides have already lost’?

Secondly, I’m pretty sure you can’t automatically obtain a right of way simply by trespassing for 20 years.
For example: https://www.carverknowles.co.uk/can-i-p ... h-created/

It CAN be done, but it’s not as simple as often thought.

steveb
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Re: Access/easements

Post by steveb » Thu 17th Dec, 2020 8:33 pm

my interpretation of that link is that rights are automatically created after 20 years - in fact that document explicitly says:

"Landowners should forward think to prevent rights of way from being created without their permission. If the route of a permissive path is used uninterrupted for 20 years then the person using that path can acquire a right of way just because of the uninterrupted use for this period of time. "

and the point of the document is to describe how to stop that right happening - but only if 20 years has not already passed. That is why the insurance policies demand the declaration of 20 years.

My guess is that people that suddenly appear and claim or acquire ownership of bits of land / ransom strips basically prey on the weak - so those that don't want an argument - effectively extorting from the elderly or vulnerable, or people that cannot prove 20 years access. Money changes hands, problem goes away.

They are not going to take on an insurance giant (I think my policies were underwritten by royal & sun alliance or some massive insurer) in court with a case that they will lose. So the insurer underwrites a policy that it knows it will never pay out on - worst case is it sends a snotty letter to the person trying to block the right of way - and the owner wins because of the existence of the policy they are insures against bullying from a landowner.

however - I am not a lawyer and appreciate that everyone's risk appetite varies!

Flyfisher
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Location: Norfolk, UK

Re: Access/easements

Post by Flyfisher » Thu 17th Dec, 2020 10:51 pm

Yes, rights of way CAN be created after 20 years but there are defences against it and the 20 years of use has to be proven. Where there is no landowner to contest things then it’s going to be fairly easy, but if they suddenly turn up and don’t want such a right of way established then things would get messy.

Imagine if half a dozen neighbours get together and proclaim that they’ve been walking across your garden for the past 20 years - would that automatically create a right of way across your garden? I’d like to think not.

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