Title deed discrepancy

FirstTimer2020

Hi all,

I'm buying a mid-terrace house (house C) but it doesn't have a right of way written into the title deed (in fact, it's missing a tonne of info).  The mid-terrace next to me (house D) has a right of way written in to theirs, and the end terrace (house who owns the access pathway has the right of way written in to theirs.  I'm at a complete loss, and my solicitor doesn't seem to know why it is omitted in my title register.

The vendor stated that there was an access pathway he used between house A and house B with a key-coded gate.  And that house D has a right of access behind my garden (house C) past house B.
My solicitor asserted that my property has no legal right to use this access way and has suggested an indemnity policy for lack of easement from the vendor.
I decided to buy access to all of the property deeds and found the following:

• House D
  
• Section A Property Register: "2 .The land has the benefit of a right of way over the passageway leading to the rear."
• Section C Charges Register, Under the Schedule of Restrictive Covenants "... except that the said passageway shall not be used otherwise than as part of a joint passageway on foot only nor shall anything be done or suffered to be done on the same or any part thereof which shall or may impede the free and uninterrupted use thereof as part of such passageway on foot only nor shall anything be done or suffered to be done on the same or any part thereof which shall or may impede the free and uninterrupted use thereof as part of such passageway by the persons unto whom a right of way over and along the same is excepted and reserved as above mentioned."
• "6. To pay from time to time (in common with all others entitled to use the same) a fair proportion of the expense of keeping the said passageway in good repair and condition."
  
• House C (the one i want to purchase
• There is no mention of a right of way.  This title deed is also missing a significant number of details that are present on both the title deeds for no.34 and no.38, which I think we would be liable for, including references to upkeep of the passageway.
• House B
• Section C Charges Register: "3 The land tinted blue on the filed plan is subject to rights of way."
  
• Schedule of restrictive covenants: "6. To pay and contribute a fair and just proportion towards the upkeep of the joint passageway constituted by the land coloured blue and green on the said plan.""

Conclusions

• I am unclear about why house D has a right of way to the access way but the title deed for our property, house C, does not
• I am unclear about why so many details are missing from our own title deed when house D and B have such similar deeds.  I wonder if it was because the title deed was lost or reconstituted at some point in the past with such details being omitted.
• I believe there is a good chance that our title deed should articulate our right of way to the access way in line with both the title deed of houses D and B.  This would also be in line with the account provided in the solicitor's pack from 2008 (from a previous sale), and the current vendor's assertion that we have access.

Because I can't post links yet:
__________________________________________       |
|                        |             C               |            B            |      |
|          D             | _____________  |_____________ |      |
_____________|________________________________|

greatcrested

Well whatever the historic reaons for house C not having a ROW, the fact is, House C .... does not have a ROW!

I don't see what use an indemnity insurance policy would serve. It cannot create a ROW where none exists, all it can do is cover any costs you incur as a result of having your use of the passageway prevented. What costs might those be.....?

If use of the passageway is essential to your life in propety C, don't buy property C.

davidmcn

greatcrested said:

I don't see what use an indemnity insurance policy would serve. It cannot create a ROW where none exists, all it can do is cover any costs you incur as a result of having your use of the passageway prevented. What costs might those be.....?

The dimunition in the value of the property caused by the loss of the access (or in probably more practical terms, the price required to get rights formalised with whoever owns the path).

FirstTimer2020

davidmcn said:

greatcrested said:

I don't see what use an indemnity insurance policy would serve. It cannot create a ROW where none exists, all it can do is cover any costs you incur as a result of having your use of the passageway prevented. What costs might those be.....?

The dimunition in the value of the property caused by the loss of the access (or in probably more practical terms, the price required to get rights formalised with whoever owns the path).

House B owns it and house D has access to it...but my title literally has like 4 paragraphs compared to 4 pages of the adjacent houses.  It really seems likely that the original title was lost and they had to try and reconstitute it.
Ultimately, if House B already has to allow House D to use it...it shouldn't be out of the question to formalise it in the title for house C, just super annoying...

princeofpounds

I suspect that you are right that the original title has been lost or was registered incorrectly or something, way back in the mists of time.

As you may know there are ways of having an easement that do not require it to be expressly granted in the title deeds (http://www.landandboundarydisputes.co.uk/easements.php). It's possible that you may be able to establish a rationale for one of them, especially given that the right of way probably was likely designed to include your property as well.

But it's not the most straightforward case - certainly for an armchair layman such as myself. Obtaining an easement through prescription (basically, customary use) is complicated by the existence of a keycode gate, which implies use of the right of way was done with permission (and yes, it could also imply an easement existed, but that doesn't matter so much).

So you're probably looking at the more esoteric arguments under easement by implication, if anything is to work. http://www.quinnlaw.co.uk/can-still-easement-deeds-dont-say-one/

But short of taking legal advice from a specialist, I don't think I'd rely on this access as it stands. Without further evidence it's going to be hard to develop a meaningful case.

greatcrested

FirstTimer2020 said:

davidmcn said:

greatcrested said:

I don't see what use an indemnity insurance policy would serve. It cannot create a ROW where none exists, all it can do is cover any costs you incur as a result of having your use of the passageway prevented. What costs might those be.....?

The dimunition in the value of the property caused by the loss of the access (or in probably more practical terms, the price required to get rights formalised with whoever owns the path).

Ultimately, if House B already has to allow House D to use it...it shouldn't be out of the question to formalise it in the title for house C, just super annoying...

Why? If House B chooses not to grant C the use of the path, it may well be out of the question - unless house C has some other evidence of such a right.

Simply saying "Well they've got the right so I should have the right" is not how the law works.

FirstTimer2020

Solicitors' documentation refers to the previous owner having had access for his entire time at the property of 1976-2008, before it passed on to the current owner. Based on google time stamps the gate was added around 2014.  Would this give me any leverage in that space to consider implied easement or otherwise?

greatcrested

Yes if you can get a Statement of Truth from the current owners regarding the length of time they've had unencumbered access plus a similar SOT from the previous owners regarding their access. 20 years is required. You could then claim an Easement by Prescription.

https://www.gov.uk/government/publications/easements-claimed-by-prescription/practice-guide-52-easements-claimed-by-prescription

princeofpounds

FirstTimer2020 said:

Solicitors' documentation refers to the previous owner having had access for his entire time at the property of 1976-2008, before it passed on to the current owner. Based on google time stamps the gate was added around 2014.  Would this give me any leverage in that space to consider implied easement or otherwise?

That's fantastic detective work, totally flips the situation in favour of the OP. Your solicitor should know this, but the statement of truth should make it clear that this right of way was not exercised under license (i.e. it was taken by right, not with granted permission). In that case you're in a much much stronger position. Especially if the current owner of House B arrived after those first 20 years of use (and so presumably cannot realistically oppose the statement of truth)