Easement Issue

lthompson87

I’m not sure if I’ve posted this correctly, however if not please feel free to remove it.

I’ve recently been approached by a neighbour who states they have a right of access across my property to an ajacenr field. We have lived in the property for many years and this is the first we’ve hear about it.

After doing a bit of digging I have found a charge against our title document saying that a right of access exists across our land to the land owned by the Secretary of State, the former owner of my neighbours field.

After looking at my neighbours title I can’t find a matching charge on their charges register. I have been told that the charge needs to be recorded on both the servient and the dominant titles to be enforceable, is this correct. Can my neighbour enforce this easement despite the charge not appearing on her own documentation and after abandoning it for at least 20 years?

Any advice would be fantastic.

princeofpounds

Hi - not sure why you didn't get more replies so I thought I'd bump this.

No, the charge does not need to be recorded on both sets of deeds. I assume there is no doubt that the neighbour is covered by the easement (i.e. they are the beneficiary or they are accessing the land with the permission of the beneficiary).

Can they enforce the easement? Almost certainly yes. Unless there has been a mutually-agreed deed to release the easement, there are only a few rather rare ways an easement can end.

Has your property, and the dominant property, even been owned by the same person since the easement was created? That's about the only possible one I can think of that might apply in your position.

G_M

The passing of time does not remove an easement.

a right of access exists across our land to the land owned by the Secretary of State, the former owner of my neighbours field.

So it specifies where the ROA ends up (the ajacenr field[sic]). Does it specify a) where from and b) for who's benefit?


Does the Charge in the Title reference another document eg a Conveyance or Deed? If so, do you have access to that to see the full wording?

Davesnave

While an easement might be created via 20 years unopposed use, abandonment for a similar time doesn't extinguish it.

For example, a neighbour has had a septic tank drain field on our land for over 20 years and appears to have created a right for it to be there by prescription.

Something with a higher status in law might override such an right, however.

For example, if this neighbour needs to renew this drain field, they will not be allowed to, as the site is too close to a watercourse to meet legislation passed since it was sited.

lthompson87

The entry into the charges register reads;

A right granted by a deed of grant of easement unto the Secretary of State to pass and repass on foot or with horses and carts, at all times, a strip of land measuring 15foot in width to be used as a roadway to the aforesaid.

It states there was no plan filed.

lthompson87

According to another neighbour who has lived on the street for some time, the land on which our houses stands was owned by the Secretary of State. However we are unaware if the two ownerships overlapped at any point.

G_M

lthompson87 wrote: »

The entry into the charges register reads;

A right granted by a deed of grant of easement unto the Secretary of State to pass and repass on foot or with horses and carts, at all times, a strip of land measuring 15foot in width to be used as a roadway to the aforesaid.

It states there was no plan filed.

Is the Deed filed? If so, pay £7 for a paper copy here.

lthompson87

No the original deed isn’t filed with the LR either. There’s just the statement above in the charges register, possibly because the land was a quote by compulsory purchase before registration was mandatory.

G_M

well for the full wording, and to fully understand the covenant, you'd need to obtain the Deed from whoever now has it - if anyone.


You could ask the LR how they obtained the wording in the Charges Register when the property was registered.


You could deny the neighbour access, quoting the Register, and insist that it only grants a ROW to the S of State, not to him.

grant of easement unto the Secretary of State to pass and repass

If the neighbour wanted to enforce his right (assuming it exists) he would then have toproduce evidence, documentation etc to show that right exists for him, not just for the S of State. Leaves the onus, and initial costs, on him.

Or you could be neighbourly and agree to his access, perhaps agreeing precisely what route he must take and that it would be limited to on foot, horse and carts (no bikes for example).

How disruptive is the proposed access? Eg is it the bottom of your huge garden, or right by your kitchen window?

lthompson87

lthompson87 wrote: »

No the original deed isn’t filed with the LR either. There’s just the statement above in the charges register, possibly because the land was a quote by compulsory purchase before registration was mandatory.

The easement if enforced would effectively allow him to drive over 3 gardens all in a row leading the the field. It is the only conceivable access to the property as the road terminates further up.

G_M

lthompson87 wrote: »

The easement if enforced would effectively allow him to drive over 3 gardens all in a row leading the the field. It is the only conceivable access to the property as the road terminates further up.

Only if he owns a horse and cart. He can't drive a car.....


"to pass and repass on foot or with horses and carts, at all times"