easement of necessity

The_Goat

This is my first post, but this site has been a great source of information in the past, so I'm hoping someone might be able to help me.
Settle in, it might be a long one...

My wife and I are trying to buy a house, which is on a private road.
The Road is about a mile long and has 7 houses on it (all at the end of the road) the owner of one of the houses has sole ownership of the road.
On his deeds, every house on the road (apart from the one we a trying to buy!) has an easement, allowing the occupants of the houses full rights to access by vehicle. For our (potential) house, it specifically names the current owner (who, to complicate matters is in care, with her house being sold by power of attorney)

We have been ready to exchange for 7 weeks.
Our solicitor (who seems pretty out of her depth) contacted the seller' solicitor 7 weeks ago, to ask them to contact the owner of the road to ask permission for an easement.
After 3 weeks (!) the seller's solicitors said that in stead of this, they would get indemnity insurance, to cover the lack of access, however, after another week, they found out this would not be possible.
So, 4 weeks after they were asked to do it (and behaving like this was an idea that they had just had) they said they would contact the owner of the road, to ask for an easement. A few days later, they realised the road-owning house also has a mortgage on it, so also approached the lenders to ask for their permission.

This was 3 weeks ago.
Today, I get this email, from the estate agent (who has been very helpful, throughout)

[FONT=&quot]It seems as if the owners of the lane are not playing ball as nothing has been heard from them. The sellers are therefore asking their solicitor to obtain an Easement of Necessity by Court Order. This is a very costly thing to do, but they are desperate to get this sale through, as their relative’s money in the nursing home is nearly gone and she will need to be moved.[/FONT]


Our solicitor has told us that our mortgage lenders will not release the funds, unless we have full access.

So, now for the questions.

1- Given that the private road is ALSO a public footpath, (according the council) is there any chance that an easement of necessity will actually be granted? The research I have done seems to suggest that wanting to drive to the house(down a mile long, unlit country road, from the nearest public road) might be considered a "convenience" as it can be accessed by foot. (though obviously, even if we were prepared to walk there every day, anyone making a delivery would not be)

and, if an easement of necessity were a viable option:

2- How long would the process take?

3- Is it possible, and is it likely that the easement could be overturned on appeal, leaving us with a house that we can not access by car, making it worth considerably less?


Thanks in advance

D

G_M

The_Goat wrote: »

1- Given that the private road is ALSO a public footpath, (according the council) is there any chance that an easement of necessity will actually be granted? The research I have done seems to suggest that wanting to drive to the house(down a mile long, unlit country road, from the nearest public road) might be considered a "convenience" as it can be accessed by foot. (though obviously, even if we were prepared to walk there every day, anyone making a delivery would not be)
No idea - get legal advice

and, if an easement of necessity were a viable option:

2- How long would the process take?
probobly a 'long' time as it will have to meander through the courts. I don't know the process, but assume the road owner could object, thus dragging out the process

3- Is it possible, and is it likely that the easement could be overturned on appeal, leaving us with a house that we can not access by car, making it worth considerably less?
Yes

Thanks in advance

D

I would not buy this unless/until a Deed/Conveyance was in place between road owner and property owner, which was binding on subsequent owners (of each).

The seller will have to sort this and it will take time.

Argghhh

long way to walk carrying all your furniture i would hang fire

martin.cat

Can you speak to the road owner yourself to se what is position is? Face to face you will get a feel for wether this is a reasonable guy?

The_Goat

Yeah, unless it is all sorted out we will not be going through with the purchase.
Even if we were willing to carry everything down the road (which we're not) I doubt a plumber would be willing to carry a bath, when we come to have the bathroom done.

The_Goat

martin.cat wrote: »

Can you speak to the road owner yourself to se what is position is? Face to face you will get a feel for wether this is a reasonable guy?

This is what I wanted to do (and did go to his house a while back, but he wasn't in)

I've since reconsidered this, as, if he tells me that he wants money in return for him granting the easement (rather than the seller) I'm worried it could make things complicated (as the sellers would be the ones paying him, if that were the case)

The sellers have also supposed to be doing this, but he hasn't been there when they've gone to the house.

bluebell2014

Hi ive started my training in conveyancing and thought the information in my law book may help.

Easements and public rights of way:
A public right of way is not an easement but a right exercisable by anyone, by virtue of the general law to cross anothers land. The surface of the land over which a public right of way exists is known as a highway.

Easements and Conveyancing:
Easements have a dual importance in a conveyancing transaction. First a buyer needs to ensure the land being purchased has the benefit of all the easements over adjoining land that are needed for the full enjoyment of the land being acquired. So for example if the only access to the land is over land belonging to another, a buyer should ensure that right of way over that land exist and need discovering at an early stage.

You say the deeds specifically name the current owner as being allowed access but there is no easement. Its surprising the lane owner is not getting back to you. I dont see why you wouldnt be granted this by them especially as the other houses have easements granted. I dont see how tge seller can assist you with this. It will have to be the lane owner. Cant you speak to fellow neighbours to see if their easements were automatically in their paperwork or if they had to apply for this? Whys yours the only one without it?

I wouldnt rush it. Im sure youll get the access granted.

fishpond

Argghhh wrote: »

long way to walk carrying all your furniture i would hang fire

Would you not be allowed to use a handcart or even a horse & cart?

hardpressed

Perhaps the owner of the lane hopes to buy the house himself for a low price as without easement it is unlikely to sell.

Ulfar

If it can't be sorted by the vendor, then you are either going to get lots of walking in or are going to have to walk away.

If they are desperate to sell, they need to sort it out.

The_Goat

Thank you all for your replies.

I have no intention of going through with this if the sellers can't sort it out.

I was mainly interested in knowing if there is actually any chance of the easement being granted, given that I do have access to the property by foot (and the easement would only really be for vehicle access) and whether this sort of thing is something that can be done relatively quickly (like getting power of attorney) or whether it would be a full on court case.
(Neither solicitor seems to know, which isn't filling me with confidence!)