Mid terrace - no apparent legal right of access?!

Blondie1983

Hi - I am in the process of buying a mid-terraced house from the 1800's, which is situated down an unadopted road a very short distance from an adopted highway. My solicitor has discovered whilst conducting the searches that the house basically has no legal right of access with no ROW along the unadopted road, or to the rear!


The unadopted road to the front isn't registered with the Land Registry so we have no idea who owns it, and the land to the rear of the whole building appears to form part of mine plus the other adjoining properties (on viewing I was told there was a right of way through the rear gardens to take out bins etc). The title plan simply shows a tiny right of way which starts where the unadopted road finishes, and leads to the rear of the far end terrace furthest from the adopted highway. So in a nutshell, it looks like I need a helicopter and roof hatch to legally gain access!


My solicitor says a statutory declaration is required from the seller confirming the long standing right of access, along with a supporting indemnity insurance policy to protect against any action taken preventing me accessing the property. Has anyone come across a scenario like this before? Thanks in advance

davidmcn

Blondie1983 wrote: »

My solicitor says a statutory declaration is required from the seller confirming the long standing right of access, along with a supporting indemnity insurance policy to protect against any action taken preventing me accessing the property.

That's the correct way of dealing with it, so if the seller is willing to get all that then it saves you from awkward questions in the future. But if the layout has obviously been the same since the 1800s then the house will have acquired the access rights long ago through its use, so in reality there isn't a risk of somebody suddenly deciding to object.

I'm more confused by your comment that "the land to the rear of the whole building appears to form part of mine plus the other adjoining properties (on viewing I was told there was a right of way through the rear gardens to take out bins etc)" - do you mean it looks like individual gardens but it's actually all owned in common?

moneyistooshorttomention

I guess your solicitor is after that "statutory declaration" from your vendor in order to have it plain that you have "prescriptive rights" to get to your property.

Basically - if there has been "regular usage" for ROW purposes for a certain length of time by the occupant of the house (think it used to be 20 years? think it might now be 40 years?) then it's established that an official ROW has come into being. That from what I know of the law - but one of the "legal brains" on here could explain this much better than I can - I'm just trying to put it in simple language as I understand the position to be.

Again - what could be confirmed by the "legal brains" on here and/or Land Registry rep (who often comes on here) is I believe I am right in saying that any such "prescriptive rights" for access have to be put down in writing on the Deeds (traditional old version or modern-day Title Plan/Register entry) - as otherwise you'd only have someone's word for it that there was such a prescriptive right. If it's in writing on the paperwork the Land Registry hold - then it definitely does exist.

The "statutory declaration" would basically be = someone's word for it. Hence your solicitor also suggesting taking out indemnity insurance - in case the owner of that access turned up at some point and said that something of that status (but not down on the Deeds) wasnt so.

EDIT; cross-posted with davidmcn - I believe he is one of the "legal brains" on here...

Davesnave

The statutory declaration is that confirmation of prescriptive rights, money, and the indemnity insurance is there to provide for a situation where those might be legally challenged. Not very likely in this case, I'd imagine.

tom9980

While David and the solicitor are correct the reality from my in laws experience is you should be cautious. The situation is identical except part of the track over a field has not been maintained over a 70 year period so it no longer exists (sunk/plowed in?). The landowner does not deny them the right to cross but is refusing them the right to reinstate the track for vehicle access over a route that is nearly a mile long.

The indemnity insurance does not cover them for this scenario and is likely going to cause them a £100k+ loss in value to their property. Make sure you are fully satisfied with the situation or get things agreed in writing and put on the deeds of all properties involved.

martinsurrey

tom9980 wrote: »

While David and the solicitor are correct the reality from my in laws experience is you should be cautious. The situation is identical except part of the track over a field has not been maintained over a 70 year period so it no longer exists. The landowner does not deny them the right to cross but is refusing them the right to reinstate the track for vehicle access over a route that is nearly a mile long.

The indemnity insurance does not cover them for this scenario and is likely going to cause them a £100k+ loss in value to their property. Make sure you are fully satisfied with the situation or get things agreed in writing and put on the deeds of all properties involved.

OPS case is a Mid terrace, more than likely in a semi urban area, there are hundreds of thousands of houses like them, it was a normal way of building and selling in the 1800's, and they are bought and sold every day.

your in laws are in a very unique house, with unique access requirements, likely a few like it in the country, they are like apples and oranges.

Davesnave

tom9980 wrote: »

While David and the solicitor are correct the reality from my in laws experience is you should be cautious. The situation is identical except part of the track over a field has not been maintained over a 70 year period so it no longer exists. The landowner does not deny them the right to cross but is refusing them the right to reinstate the track for vehicle access over a route that is nearly a mile long.

Coincidentally, I have a disused track over my fields too, although it's not a public RoW.

So far as I understand the law, I cannot prevent someone whose property was once accessed via that track from doing so on foot, but vehicular access is a different matter. Highways would be rather upset as well!

Perhaps the OP only has, or needs, pedestrian access?

tom9980

martinsurrey wrote: »

OPS case is a Mid terrace, more than likely in a semi urban area, there are hundreds of thousands of houses like them, it was a normal way of building and selling in the 1800's, and they are bought and sold every day.

your in laws are in a very unique house, with unique access requirements, likely a few like it in the country, they are like apples and oranges.

Oh I agree, my point was more to do with showing the OP that while indemnity insurance in most cases can be more than adequate there are occasions where it is not. It only takes that land being sold to another land owner with questionable morals and you have a headache to solve. Much better to get things sorted out legally and done properly if possible. I would encourage them to at least investigate that possibility.

Land_Registry

Usual thing re deeds lacking re right of way/access. After so much time and not knowing who owns the road then the prescriptive easement route is likely to be the only one available to you here
https://www.gov.uk/government/publications/easements-claimed-by-prescription

The alternative is do nothing of course and carry on regardless but the same issue may arise next time there's a sale/purchase and that builds in a delay you may not want

davidmcn

tom9980 wrote: »

Much better to get things sorted out legally and done properly if possible.

It can only be done "properly" if someone can trace the owner of the road - which is easier when you're within sight of the farmhouse than when you're in the middle of a Victorian housing development.

moneyistooshorttomention

davidmcn wrote: »

It can only be done "properly" if someone can trace the owner of the road - which is easier when you're within sight of the farmhouse than when you're in the middle of a Victorian housing development.

Very true.

I would imagine it's most likely that ownership of the road has been lost somewhere or other in the "mists of time".

The other possibility, of course, being that someone somewhere does know very well that they own the road and is keeping very quiet about it (ie because of it being an unadopted one). In this litigious day and age - if a "compensation claimer" has an accident on and because of the state of repair (or otherwise) of that road then the very first person they'd be looking for to send that letter to (hoping they might manage to get a payout) would be an owner of the road.

So anyone-who-knows-they-are-the-owner is most unlikely to pop their heads up anyway - unless they saw a chance to make a stash of money from selling the road off towards redevelopment nearby I would imagine - if then.