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Rights of Way and Access

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Rights of Way and Access

Sounds idyllic doesn’t it? But have you thought about the potential problems of access to and from the property, ownership and maintenance of the roads and rights of way?

The problem is more common than you think and there are several matters which you need to take into account:

Does the property have a legal right of way over the access road?  This is usually found specifically noted in the register entries.

  • Where there is no right of way noted then it needs to be confirmed how long the use has been in existence and what evidence there is to support the use. Evidence usually takes the form of statutory declarations made by previous owners of the property confirming that they have exercised a right of way over the access road during their period of ownership.
  • In addition to statutory declarations the seller of the property should be asked to do one of two things:

-          When the land over which the access road passes is not registered at the Land Registry, register a caution against first registration in favour of the property over the road. The longer the caution is registered the better. The caution against first registration is an application to the land registry to protect your right of way over this land.  Without the caution, if the owner of the access road were ever to materialise and decide to register their ownership in that land the land registry would not be aware of your right of access and could register the ownership without it being subject to your right of way.  You would then have to negotiate with the registered owner of the access road regarding your rights and this could potentially involve expensive litigation costs.

-          Provide an Absence of Easement Indemnity Insurance Policy.  The policy covers you against the lack of express rights to use the road and any paths and also any services which run under the road i.e. gas pipes, electricity wires and cables connecting to the property.  The policy will pay out for any loss sustained in the event someone claims ownership of the road or attempts to make an application to prevent you from using the access road.  The loss is the difference in market value of the property without the use of the access and the cost of obtaining a legal right of way from the person claiming ownership and any court costs and compensation awarded against you.

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