easement of necessity

Land_Registry

An interesting scenario especially as all but one property have an easement registered. Whilst it may not be relevant to you as you try to resolve the matter it may assist in understanding the wider issues involved if there was a clue as to why the property was not granted the easement?

On the specific issue of what next there appear to be three options, two of which are already being worked on, namely getting the lane owner to grant an easement for the benefit of the property or asking the court to grant an order of necessity.

Others have covered this in their replies so nothing to add other than that court action is not that common re such things in my experience and does it suggest some sort of wider issue here with the backdrop of apparent exclusion from the original easement? You don't state how long the easement has been in place or when it was granted (if known) and whilst it won't resolve things for you it may aid understanding around the subject a little.
The same goes for why indemnity insurance was denied as well - any reasons given?

The third option, complicated by the current ownership of the property perhaps, is that has the owner acquired a right of access/way over time - known as a prescriptive easement. The minimum time-frame is 20 years of use.

My hunch is that this is not an option for a variety of reasons, some of which I have mentioned above, but not least because you have not mentioned it as an option suggested by your solicitor.

As such I suspect it is reliant on the original point re why was the property not granted the easement along with the other properties? It seems clear from your post that this is an essential right of way (albeit clouded by possibility that it is seen by some as a public footpath?) as you refer to the distance to be covered and the court option.

I hope I have not muddied the waters further for you but it is your legal advice you must rely on here as they will have a fuller picture. I am not too sure anyone will be able to cover the court process in any detail although again your solicitor should have access to some understanding/experience of that area.

The_Goat

Thanks for your reply, in answer to your questions


You don't state how long the easement has been in place or when it was granted (if known) and whilst it won't resolve things for you it may aid understanding around the subject a little.

As I understand it, at one point all the owners of the houses were named on the road owners deeds, over time, as they have been sold, they have been updated. this house is the last one to be sold (last sale was 1967) so still has the old setup. The road owners deeds have been updated as recently as 3 years ago to reflect this, which is why I'm so confused that this is becoming such a problem

The same goes for why indemnity insurance was denied as well - any reasons given?

As i understand it, it was becasue the present owner is named in the deeds that this could not be aquired - her being named meant that it proved that she did have a right, and it proved that this right was not transferable with the property

The third option, complicated by the current ownership of the property perhaps, is that has the owner acquired a right of access/way over time - known as a prescriptive easement. The minimum time-frame is 20 years of use.

Again, doesn't the fact that she has had permission to use it for the last 20 years mean that this doesn't apply?

Land_Registry

Many thanks for the additional details although some clarification is still needed as it seems an odd scenario although that may simply be my reading of it.

Are you suggesting that the owner of the road also owned all the properties and has been selling them off down the years and granting the easement each time perhaps?

A prescriptive easement cannot normally be acquired if consent was provided

The_Goat

Sorry, I might not have explained it very well.
All of the houses were owned individualy. to my knowledge, they were never all owned by the owner of the road.

I have emailed the details I have to the email address you provided.

thanks again

Land_Registry

The Goat has kindly shared the address details with me and I have run a few checks in an effort to understand the situation re the registered titles/properties involved and the right of access itself.

Hopefully the following will aid understanding around what the registered position is

* Each property (less the one being bought) have a registered right/easement to use the lane.

* Each property has been granted that right at different times in roughly the last 40 years by means of a legal deed. Those rights have not all been granted by the current owners of the lane.

* The current owners did grant a right as recently as 2011 as the OP mentions above so we know that there has been recent activity in that regard

* The property being bought was registered in the last 15 years and it would appear that not all the old deeds/documents were available to support that registration, with some of them having been destroyed by fire. It seems likely that this loss triggered the current owner (OP's seller) to register the property for the first time.

* whilst it is quite possible that that at some point in the past a right was granted for this property no deed/document has been provided to demonstrate this and nor is the current owner of the lane's title subject to that specific right.

In essence all three options appear to remain open, namely
1. the current owners of the lane grant a right of way
2. the current owner obtains an order re necessity of the easement or
3. the current owner in some way demonstrates that they have acquired the right over time

On the face of it option 1 seems the most obvious and perhaps 'cheapest' route to take but much depends on the current owners of the lane cooperating. The OP refers to the estate agent advising that 'nothing has been heard' from the owners of the lane but, in my experience, I am unsure whether 'silence' would be sufficient reason to go down the route of option 2. However that is clearly something only your solicitor can advise on as they would be aware of the facts involved and be in dialogue with the seller's solicitor re circumstances etc

Finally, I would add that the fact that the sale is being made by the owner's attorney and/or the owner being in a care home may suggest additional complications around the history/understanding of what has gone before, especially re how access has been obtained/used over the years. However others may have greater experience re such things of course.

Whatever option you pursue it would be helpful to hear about how it plays out in the end of course

G_M

I would keep knocking politely on the lane owner's door and/or find their phone number and call.

Option 1 is clearly simplest. By by-passing the agent/lawyers you might gain agreement and the lane owner could then instruct his solicitors to start work..... There might be a cot involved, and OP would have to decide/agree whether he was willing to pay or whether seller (in Care home?) should pay.........

The_Goat

Thank you for looking into this, Land Registry Representative, you've been really helpful.
I'm been told by the agent that I'll have an update on this today, so will post again when I know more.
Something just doesn't add up, I've got a suspicion I'm not being told the whole story for fear of us pulling out.

The_Goat

Thanks G_M

The problem with me approaching them directly is that the only thing I can offer them that the sellers can not (who have been round, apparently) is money.
if I pay for the easement (which I'm not keen to) the sellers are the ones that will benefit as we have not exchanged and they could pull out of the sale at any point.
I feel like me telling the sellers that the owner wants £x could make things complicated.

The_Goat

got an update from the agent this morning. have copied it in below, with my replies

[FONT=&quot]There has been no word from the owners of the Lane and the sellers have been advised not to approach them again for fear of antagonising them – they are, by all accounts rather strange people, not that I know them at all. The solicitor has had no response from the owners but will write again and specifically ask them what terms would be acceptable to grant an easement. In the meantime he will seek property specialist Counsel's opinion on the matter of obtaining an easement by whatever other means available.[/FONT] [FONT=&quot] [/FONT]
[FONT=&quot]This could however, take weeks, and should Counsel's opinion be that they apply for an Easement of Necessity he will set this in motion but advises this could take up to six months. None of which is good news I’m afraid.[/FONT]

[FONT=&quot][/FONT]

[FONT=&quot][/FONT]
Just so I'm clear, have the sellers spoken in person to the owner of the road? if so, what was said?

[FONT=&quot][/FONT] [FONT=&quot]No, they haven’t spoken in person. They wrote a letter and hand delivered it.[/FONT]

[FONT=&quot][/FONT]

[FONT=&quot][/FONT]

I think I've made it clear that I'm very enthusiastic about buying this house, but this continuous approach of "wait and see" is starting to take it's tole, especially when the current solution seems to be "wait for six months and see", which requires me to put my life on hold for another six months, in order to buy a house that will have stood empty for a year, and so will obviously be in a worse condition than when I made my offer (not to mention that my mortgage offer will have expired by then).
This goes for any other buyer, too. The house will potentially be worth less money, as it will have been empty for so long, and they will have to declare this issue with the neighbour to whoever they sell it to.

If they haven't actually spoken to him, I fail to see how speaking to him for the first time could possibly antagonise him, particularly if what they are saying to him is "how much money do you want?"
Equally, if this person has already ignored two letters, I don't see how sending another one is going to help.
Clearly (as the owner did grant an easement for another house on the road in 2011) there is a scenario in which he would be happy to comply, they just need to establish what this is.

I can't say what anyone should do, only what I would do, which is speak to the other neighbours in order to find out if he is even living there at the moment, and the best time to find him at home, so I could visit every day until I had spoken to him.






so... might be time to cut my losses and walk away from this one, I think

smifffy1989

We investigated a house which had a similar but unique situation. We found the landowner who happened to be local landlady and spoke to her about it. She was very helpful and told us exactly how much she wanted to grant the access legally.

I would go and speak to the person.