Resticted byway

JohnCox25

Has anyone had this problem in selling a home? The sale has been going on since Jan/Feb 2022

Their lenders offer ran out of time.and they are trying toget a second offer from th lender, but it seems the same lender has change its rules regarding a restrictive byway leading to our property. We also have our lender saying they are instructing their own solicitors to enforce a possession order. So we are against time.

This below from the vendor solicitors

Dear "our" solicitors.

We have now received a response from our lender who have suggested they are only prepared to proceed if we are satisfied the property benefits from legal access across the Restricted Byway.

 As you have now produced a statutory declaration from the previous owner and the current sellers have done the same we will require a prescriptive right to be registered against the title, using these documents in order for us to agree the property benefits from legal access.

 We are unable to claim a prescriptive right on completion with our application to register as the lender has also indicated that it required indemnity insurance to be in place and under the terms of this policy we are not able to register the rights.

 We would be grateful if you could confirm if you are prepared to make the application to claim the prescriptive rights and if you are, we will need to withdraw our live priority search.

 Kind regards

(Their soilicitors)

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From our solicitors

Essentially we are being asked to see if we can persuade the Land Registry to record the right over the by-way in the deeds formally by using the law of prescription relying on the declarations we have in our possession. There are likely to be a few challenges with this 1) the byway isn’t registered land 2) We are asking the land registry to register a right to do something which is technically illegal – although as we know we would argue that statute did preserve existing rights being used which should hopefully void any illegality

 If you would like us to attempt the application. If you are minded to explore this then please let us know and we will send over a quote. There is of course no absolute guarantee the land registry will do as we ask.

ProDave

A relative of mine pulled out of a purchase because of what sounds like a similar thing.  The house they were buying was accesses over a byeway that the public only had a right of access over on foot or on horesback.  There was no right to drive a car over it, but the owners of this house had been doing that for a long time.  But there seemed no legal way to get a right to drive over it and someone could erect a barrier that would prevent vehicle access at any time and there would be nothing you could do about it.  You would also be in very big trouble if you injured someone while driving your car over it.

What did your solicitors warn you about this situation when you bought it?

secla

Is there no legal way to access the house ? Is it essentially land locked ? Or is there no right to drive a car onto the property etc.

if you have no legal way of accessing the property I’m no suprised it’s been picked up on

Section62

JohnCox25 said:

Dear "our" solicitors.

We have now received a response from our lender who have suggested they are only prepared to proceed if we are satisfied the property benefits from legal access across the Restricted Byway.

 As you have now produced a statutory declaration from the previous owner and the current sellers have done the same we will require a prescriptive right to be registered against the title, using these documents in order for us to agree the property benefits from legal access.

 We are unable to claim a prescriptive right on completion with our application to register as the lender has also indicated that it required indemnity insurance to be in place and under the terms of this policy we are not able to register the rights.

 We would be grateful if you could confirm if you are prepared to make the application to claim the prescriptive rights and if you are, we will need to withdraw our live priority search.

 Kind regards

(Their soilicitors)

----------------------------------

From our solicitors

Essentially we are being asked to see if we can persuade the Land Registry to record the right over the by-way in the deeds formally by using the law of prescription relying on the declarations we have in our possession. There are likely to be a few challenges with this 1) the byway isn’t registered land 2) We are asking the land registry to register a right to do something which is technically illegal – although as we know we would argue that statute did preserve existing rights being used which should hopefully void any illegality

 If you would like us to attempt the application. If you are minded to explore this then please let us know and we will send over a quote. There is of course no absolute guarantee the land registry will do as we ask.

I think the solicitors are probably barking up the wrong tree trying to get a right recorded with the Land Registry.

As alluded to, the Countryside and Rights of Way Act 2000 preserved existing (private) rights - all that needs to be done is to confirm that your property is one of those whose rights were preserved.

The easiest way of doing this would be to ask the relevant Highway Authority to confirm (in writing) that the property may be accessed by vehicular and all other traffic (see S50 of the Act for the form of wording you should aim for) - however as indemnity insurance is mentioned then be aware that contact with the Highway Authority would probably void that.

However, I'm not sure what indemnity insurance would actually achieve in this situation.  If there were no vehicular access right then indemnity insurance wouldn't make it any less illegal to drive a vehicle on the RB. If it were hoped that the insurance would make up the difference between the value of the property with access rights vs without, then the smallprint of the policy would need to be checked (by the buyer) very carefully.

I could be wrong, and @Land_Registry is best placed to comment on this, but I don't believe LR would consider it appropriate to record a right granted by statute law within a property title.  It also isn't clear what is hoped to be achieved by this - regardless of what the deeds say, a change in primary legislation (e.g. removing the preserved rights) would apply regardless.

(INAL)

JohnCox25

Thanks INAL and everyone. This has been a great help, I'll keep you posted as to what happens next. Thank you

Penri1980

@JohnCox25 Just wondering how this was resolved eventually? I'm in the buyer's position where I've found the perfect property but the searches have identified that the only road to access the house is a restricted byway, so I'm trying to work out if there's a potential solution. Hope you managed to find a solution that worked for you.