Access rights/easements - which documents do I need?

ChasingtheWelshdream

Hello,

There is a very long and complicated back-story to this, which I'll keep as brief as possible.

Essentially a relative has purchased a leasehold property which is currently accessed via private land. There is no easement or right of way over this land, and permission will soon be revoked by the land owner. There is no historic use, so can't claim any precedents.

There has been a new front door installed, which would need to be accessed via the land in front of the adjoining flat (currently rented from the freeholder). These are basement flats with fully enclosed front/rear gardens. The new door has to be accessed via a new gate in the neighbours fence, after walking along their path. (Does that make sense?)

The freeholder has said this will be fine, however I am am concerned there is still no legal access or right of way. I have seen the Title Plan and Title Register for the freehold and leasehold, and no easements are mentioned.

What document would they be listed in, if indeed they are? Would it be the lease?

There is mention of communal gardens, footpaths and areas, but the ground floor flats are, to our knowledge, self-contained.

Apologies if this sounds woolly, and I know it should have been noticed during conveyancing, but the solicitor is not to blame in this case. I want to help by finding out as much information as I can before they pay out for another solicitor.

Thanks in advance!


Edit: Just for context, the freeholder is well aware there is no access via the private land, and they installed a new front door for this reason. However, they have asked my relative not to use this door yet as they don't want to upset the neighbour (again, overly complicated back story.)

We think this is unacceptable and want access rights clarified legally. If, as we suspect, there is currently no legal access other than non-existent common land, what process would my relative need to go through with the freeholder?

The flat next door will be sold in the future, and the freeholder has also suggested running a path through the neighbour's back garden to access the flat. Again, what needs to happen to ensure everything is legal?

da_rule

So, just for clarity, the leasehold flat can be accessed by passing over land owned by the freeholder? And at the moment it is also possible to access the flat via land owned by someone else but this consent is going to be withdrawn?

ChasingtheWelshdream

OK, I have now seen the lease.

There is this section.

2.1. Rights of Way
2.1.1 The right of Lessee and all persons.......right to pass and repass on foot only over and along those parts of the Common Parts comprising the pavements and footpaths on the Estate.

Am I right in thinking they need clarification as to the Common Parts? If the footpath along the adjacent flat is Common, then she has right of way over it?

On that note, would the Common Parts be defined in a document somewhere?

I know this is a long-winded post, but I'm trying to narrow it down to specific questions to ask a solicitor should one be needed.

ChasingtheWelshdream

da_rule wrote: »

So, just for clarity, the leasehold flat can be accessed by passing over land owned by the freeholder? And at the moment it is also possible to access the flat via land owned by someone else but this consent is going to be withdrawn?

Yes, that is exactly right. The freeholder has added a new entrance and gateway across their land for future access, once the consent to use the existing entrance is withdrawn.

I want to ensure this is done legally.

I have just cross-posted with you, so have added a bit about the lease below.

Thanks for replying. :-)

G_M

The common parts should be defined in the lease, probably by reference to a lease Plan. ("the area bounded in red on the Plan" or suchlike)

da_rule

Estate and Common Parts both have capital letters which indicates that they are defined terms so they should be defined somewhere within the lease.

ChasingtheWelshdream

Thank you both. I stopped reading when I got to the Rights of Way section, but I will plough on now.

Just checking, this would be on the lease they have and was agreed before purchase?

I feel we are getting somewhere now, if only to know what questions to ask, particularly when the other flat gets sold.

ChasingtheWelshdream

So, I have these definitions.

LR4 - Property
The ground floor dwelling known as XXXX more particularly described in Schedule 1 hereto shown edged in red on the plan attached to this lease.

Definitions:
The Building - The Building means all that Apartment Building known as XXXX forming part of the Estate.

The Common Parts - The Common Parts means the areas and amenities in the Estate available for use in common by the lessees and occupiers of the Building and all persons expressly or by implication authorised by them, including the pedestrian ways, forecourts, landscaped areas and gardens, entrance halls, landings, staircases, passages and areas designated for the keeping and collecting of refuse, but not limited to them.

The Estate - The Estate means the land comprised in Title Number XXXXX and includes the Building and all other structures (including boundary walls and fences) erected on the estate.

The Flat - The Flat means the dwelling known as XXX on the ground floor of the Building, shown on the Plan and more particularly defined in Part 1 of Schedule 1.

The Plan - The Plan means the plan or plans annexed to this Lease and if number plans are annexed to this Lease any reference to a numbered plan is to the annexed plan so numbered.

This is the plan from the Title Number referenced (the leasehold).

The current access is at the top (rear), which is accessed via private land. The Freeholder has put a door and gate at the front (bottom), which means using a path in front of the adjacent flat. They have been asked not to use this path at the moment, so as not to upset the neighbour. He as had exclusive access to this area for many years. The Freehold is the whole block.

The freeholder also wants to put a path through the neighbours garden, but that flat is intending to be sold with a self-contained garden. So how would that need to be defined?



I still can't find reference to any specific Common areas or footpaths, other than the general definition above.

My relative is the only property that has been purchased. All the rest are rented direct from the Freeholder.

Am I getting worked up over nothing?

da_rule

What is the area outside of bottom red line? Is it a pavement/road etc?

ChasingtheWelshdream

da_rule wrote: »

What is the area outside of bottom red line? Is it a pavement/road etc?

Yes, it is the pavement. Both flats have small forecourt front gardens below the pavement. The right hand flat has steps and a gate leading from the pavement to his garden, my relative does not.

da_rule

So why can't he walk from the pavement into the front of the property? Directly over the red line and into the blue area.