Property right of access query - leasehold property

Maggers65

Hi all. Are there any legal brains out there who can give me some advice on a right of access issue? I'll keep it as brief as I can.

I am selling my home. I am the leaseholder and I purchased the property in 2001. The property is a semi detached maisonette.

The leaseowner (landlord) used to be the local council but in 2008 a housing association was created and all the housing stock including lease properties was transferred over.

I recently accepted an offer on the property. The search conducted by my buyers solicitor raised a query regarding the access footpath to the property. This path is approx twenty feet long and is the only way to access mine and my next door neighbours property. The search revealed there is no right of access on this path and the path is now excluded from the property boundary.

However this differs to my documents. I have the 1983 lease agreement, the 2001 search result and the 2001 Land Registry title. Each of the three documents come with a plan of the property and each plan shows the pathway included in the property boundary with documented text to corroborate what has been highlighted on these plans. I have asked my neighbour if he can locate his property documents.

I have been heavily involved in trying to resolve this and my first step was to ask the local council if a mistake had not been made on the search results. They advised me that this path was no longer 'adopted' but that there was still right of access and an agreement had been drawn up with the housing association to that end. They even provided me with the agreement reference number.

My next step was to approach the housing association who, to cut a longer story short, told me they could not locate this agreement document and denied knowledge of it.

My original conveyancing solicitor from 2001 advised me that the 'certified' lease agreement was with my mortgage lender and their deeds department cannot locate it. No answer to the same question put to the housing association. My documents are useless to my solicitor as they are not certified. An indemnity policy is not an option by the way.

The housing association have today provided a plan showing the path excluded from the property boundary as per the search results.

I do not wish to be forced into a Deed of Variation as this may cause more complications for me and my buyer.

Questions.

1) In 2008 when the housing stock was transferred to the housing association should I have been consulted regarding what appears to be a change in the lease insofar as the property boundary is concerned?

2) Do I have a legal case against the council and/or the housing association so I can kick some butt?

3) It would appear that as there is no right of access on this path I therefore have no right of access to my property. Is this correct?

Is there anything else I can do? Questions I should be asking? Demands I should be making?

Thx.

Gentoo365

This path is approx twenty feet long and is the only way to access mine and my next door neighbours property.

Sounds like either a 'easement by necessity' or a 'easement by prior use'.

An actual solicitor should be able to confirm this, but the right of access may be yours anyway regardless of the deeds purely because it is the only way of accessing the property.

Maggers65

Gentoo365 wrote: »

Sounds like either a 'easement by necessity' or a 'easement by prior use'.

An actual solicitor should be able to confirm this, but the right of access may be yours anyway regardless of the deeds purely because it is the only way of accessing the property.

Thanks for that. I've had further correspondence this morning from my solicitor who is expecting a formal response from the housing associations solicitor stating that a Deed of Variation is, in his opinion, unnecessary as any rights have been acquired by necessity. I guess this is 'easement by necessity' given that this pathway is the only access to the property. It remains to be seen if the buyers solicitor will find this acceptable. Fingers crossed. If not then a Deed of Variation looks to be on the cards.

The issue I am still pursuing is the fact that the property boundary has changed since 2008 to now exclude this section of footpath. The housing association are dodging this issue at the moment but I might let it rest and pick it up again if I need a DoV.