Statutory Declaration & Insurance - Access Potential Issues

2806

Our house is at the end of a track. We have a statutory declaration saying 20+ years of undisputed access for pedestrians and vehicles. We also have indemnity policy.

When we bought the house our solicitor told us the track didn’t belong to anyone or to an unknown person. We’ve since (very easily by purchasing deeds for neighbouring prosperities) that the track is actually owned by each neighbour whose garden is adjacent to it.

One neighbour is building a house in the back of their garden and builders are constantly blocking us in/out with vehicles and machinery. We have found out she’s been telling other neighbours that we have no legal right of access and so she can block us in as much as she likes.

Before I go out kicking up a stink, where do we stand legally? Can she deny us access? Is the stat dec basically worth nothing? She’s mentioned before about paying £5k to purchase a legal right of way - do we need to/would it be worth it for when we sell?

Thanks in advance for your help.

davidmcn

If you have twenty years' use then you ought to have a right of access. The insurance pays for you to have a legal battle with your neighbours if necessary, or pay to acquire the rights if that makes more sense. You should be speaking to the insurers first - and don't tell the neighbours you have insurance.

da_rule

Is the track registered at the Land Registry? If so, was the stat dec registered so that ykour prescriptive easement could be recorded on the title?

2806

On our deeds it looks like a separate track but on our neighbours’ deeds it shows it as part of their land. So it is presumably registered within their land documents as part of their garden I guess. There is no mention of our stat dec on their land registry information from what we can see at least.

moneyistooshorttomention

"No legal right of access" !!!

Well she's presumably never heard of the concept of "Easement of Necessity" then...:cool:

Hopefully you won't have to resort to deliberately blocking in her/her builders to stop this ....

da_rule

Depending on the terms of the insurance, it might be worth registering the stat dec with the Land Registry so that your easement is recorded on all of your titles.

2806

Please correct me if I’m wrong but...

From what I understand we have a statutory declaration saying 20+ years of access BUT we don’t have a deed of easement (either by prescription or necessity) because the stat dec doesn’t automatically give you the formal easement.

In that case, could the land owners demand that to put an easement in place we pay them a fee since we are crossing their land?

da_rule

You do appear to be somewhat confused. There is no such thing as a deed of easement by prescription or by necessity. The whole idea and function of easement by prescription or by necessity is to fill the gap for when it is equitable or necessary for an easement to exist but there isn’t a deed.

There are many ways an easement can be acquired. One way is by expressed deed. The other way is by prescription.

For prescription you must evidence (hence the stat dec) that there has been use for a period of 20 years. That use must also be; without force, without secrecy and without permission. These 3 matters should be addressed in the stat dec that you have.

The other test is that the easement must be one that could be lawfully granted by deed. For example, you cannot give someone an easement to do something that is unlawful (i.e. driving a motor vehicle on a town or village green). In the case the easement would appear to be lawful.

Land Registry form ST4 is a statement of truth that the Land Registry have specifically prepared in order to evidence prescriptive easements. I would complete this to cover the time from the stat dec was made (which I assume was around the date you purchased the property) to the time you make the application.

davidmcn

2806 wrote: »

Please correct me if I’m wrong but...

From what I understand we have a statutory declaration saying 20+ years of access BUT we don’t have a deed of easement (either by prescription or necessity) because the stat dec doesn’t automatically give you the formal easement.

In that case, could the land owners demand that to put an easement in place we pay them a fee since we are crossing their land?

You have evidence (the stat dec) of the easement having been established by prescription. It is possible for the neighbour to rebut that if they have contradictory evidence (i.e. that the stat dec isn't true). The solution might involve paying a fee (because either the evidence of prescription doesn't stack up, or it's just cheaper than a long-winded legal battle).

But in any event, this is for your insurers to sort out.