WHERE THERE’S A WILL, THERE’S AN ACCESS WAY

Access rights - known in law as ‘easements’ - can cause major problems for property buyers, property owners and businesses. A buyer, for example, will want to ensure they will be able to access the land. If access can only be obtained by using neighbouring land, this will be an issue for the buyer.

A property owner who has owned their property for perhaps many years, and consistently uses a path or track on the neighbouring land, may find themselves precluded from doing so by a new neighbour. This could adversely affect the market value of their property, and its intended use could be jeopardised.

Unfortunately, in the absence of express access rights (or any easement) in the property’s title deeds, or if existing access rights are inadequate for the purposes of the property owner, a costly dispute could arise.

How are access rights secured?

Typically, express access rights over neighbouring property will be provided by way of legal deed (e.g. a deed of easement, or deed of grant). The easement will be expressly noted on the registered title at HM Land Registry.

In the absence of an express right of way, the property owner may have an implied and or prescriptive right of way as of right and / or necessity. But what if there is concern, or even a dispute, over an access way if there is nothing expressly noted on the Register? This issue often comes to the fore on the transfer of property because access rights are so critical to a buyer. Unfortunately, access rights can be notoriously difficult to resolve because the law is complex, and the particular circumstances of any given case may be tricky.


What if there is no express easement or access way?

In some cases, an access way can be implied by law. However, this will only arise on sale of part of a property if the seller has not expressly granted the buyer an easement in the transfer. If a seller, for instance, splits a large property into two separate dwellings and sells one - retaining the other property and remaining land, a right of way could be impliedly created over the part of land over which the purchaser requires access to reach, for example, a garage. The law implies the access rights in the absence of the seller expressly providing such rights - reflecting what the original parties had intended (provided such implied rights are not excluded).

In other cases, a legal access way can arise through ‘prescription’. Where the user can show a long, unbroken and continuous use of the access way / piece of land – for at least 20 years - the owner may be able to claim a legal right of way. However, the use must have been without force or secrecy, and without permission, and must be a right that can be lawfully granted. Even if the owner of the access way also uses it jointly with the claimant, this does not preclude a claimant’s legal right to use it through prescription.

If the land is unregistered, the access right by prescription will be legally binding. If the land is registered (as it will be in most cases), a note should be placed on the register of the neighbouring land so that the effect of the easement is not lost on a future sale or transfer.

The sticking point is that if the owner of the land has tried to defend their property rights during the 20-year period by, for instance, asking the user to stop using it – the right to claim prescription rights will end.

Sometimes, a property owner can apply to the court for an order for an easement on the grounds of necessity. The court may do so where the alternative is a piece of land which is landlocked, i.e. with no access other than over someone else’s land. The applicant will have to satisfy the court that the access way was within the intentions of the original parties, and prove whether the damage or inconvenience would be greater for either the applicant’s land or the neighbouring land.

How can indemnity insurance help?

Indemnity insurance provides property buyers and owners with effective protection against the financial risks of problems arising over access rights.

Even where negotiations are underway to resolve an issue over access rights, or where legal action is increasingly a possibility, indemnity insurance can enable a transaction to take place before the matter is resolved. There is usually no need for a transaction to be delayed. Developers in particular will want to cover the risk if there is a question mark over access rights, but for commercial reasons they cannot delay completion of the development. It’s not unusual for insurance to be required because the owner of the neighbouring land cannot be identified.

Whatever the circumstances, it is important to understand that indemnity insurance does not cure the defect – but what it does do is provide peace of mind: the insured will be protected against any financial losses that could arise if the neighbouring owner asserts their property rights, and blocks (or attempts to block) access over the land.

How can we help?

First Title have years of experience insuring the potential risks of access rights. We provide appropriate and effective insurance in many different scenarios. A recent case shows how complex the issues can be in these types of cases – which our specialist underwriters were able to confront effectively.

The insured bought an old farm and started renovation works. Lorries delivering building materials to the farm used an accessway through the neighbour’s field, which had been used by the previous owners for more than 40 years. Once renovations began, the neighbour blocked the access way with a skip and refused to move it when asked. He disputed that the client had a legal right to use the field for access to the farm.

Although there was a second access way to the farm, it was up a narrow residential street and involved a steep hill and sharp turn – entirely unsuited to lorries. First Title provided insurance for the lack of a legal right of access.

Negotiations between the parties proved fruitless, and the client started legal proceedings. In the event, mediation proved successful and part of the neighbour’s field was transferred to the client to facilitate an alternative access way. If planning prevented this, the client would be formally granted an express right of way over the original access way.

Under the insurance policy, the client was able to claim the settlement amount together with all legal expenses.

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To find out more about our products and services email info@firsttitle.eu or call +44 (0)20 7160 8100.

www.firsttitle.eu

First Title Insurance plc is authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority. First Title Insurance plc is registered in England under company number 01112603. Registered office: First Title Insurance plc, ECA Court, 24-26 South Park, Sevenoaks, Kent TN13 1DU.

 

 

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