Buying a house where the only access road is a restricted byway. Any advice appreciated!

Penri1980

Hi all,

Just hoping for some advice as we go through the latest issue in our quest to buy a 200 year old house in the middle of nowhere.

The cottage that we are trying to purchase is only accessible by one road and that road is a restricted byway. The HM Land Registry title deeds for the property state that 'The land has the benefit of a right of way over the roadway tinted brown on the title plan'. The roadway tinted brown in the said restricted byway, and as I understand, it is owned by a neighbouring farmer and is leased to a private company who mine further up the road. The vendors have lived at the property for over 20 years and have been driving up and down that road for that time, without any issue. The vendors have also pointed to Section 50, subsection (2) of the CRoW Act 2000 which states the following with regard to private rights over restricted byways ‘Any owner or lessee of premises adjoining or adjacent to a relevant highway shall, so far as is necessary for the reasonable enjoyment and occupation of the premises, have a right of way for vehicular and all other kinds of traffic over the relevant highway.’ Countryside and Rights of Way Act 2000 (legislation.gov.uk)

When my solicitor has reported his findings back to my mortgage lender, they've asked for further assurances regarding the access to the property.  He has since asked the county council for clarity on the road, but all they seemed to have provided are stock answers for the restriction of the use of motor propelled vehicles on restricted byways and the potential impact of doing so.

I was wondering whether anyone on here had any similar experience or advice? Any help would be much appreciated as we love the property and don't want to pull out without investigating every possible angle. 

Thanks in advance

Section62

Penri1980 said:

Hi all,

Just hoping for some advice as we go through the latest issue in our quest to buy a 200 year old house in the middle of nowhere.

The cottage that we are trying to purchase is only accessible by one road and that road is a restricted byway. The HM Land Registry title deeds for the property state that 'The land has the benefit of a right of way over the roadway tinted brown on the title plan'. The roadway tinted brown in the said restricted byway, and as I understand, it is owned by a neighbouring farmer and is leased to a private company who mine further up the road. The vendors have lived at the property for over 20 years and have been driving up and down that road for that time, without any issue. The vendors have also pointed to Section 50, subsection (2) of the CRoW Act 2000 which states the following with regard to private rights over restricted byways ‘Any owner or lessee of premises adjoining or adjacent to a relevant highway shall, so far as is necessary for the reasonable enjoyment and occupation of the premises, have a right of way for vehicular and all other kinds of traffic over the relevant highway.’ Countryside and Rights of Way Act 2000 (legislation.gov.uk)

When my solicitor has reported his findings back to my mortgage lender, they've asked for further assurances regarding the access to the property.  He has since asked the county council for clarity on the road, but all they seemed to have provided are stock answers for the restriction of the use of motor propelled vehicles on restricted byways and the potential impact of doing so.

I was wondering whether anyone on here had any similar experience or advice? Any help would be much appreciated as we love the property and don't want to pull out without investigating every possible angle. 

Thanks in advance

Is the property you are looking at "adjoining or adjacent" to the byway?  Or is there other (private) land between them?

The council probably won't be much use in clarifying things for you, but hopefully your solicitor could give the mortgage co the reassurance they seek based on S50(2) ?  What the vendors are saying is broadly correct in my understanding of the law.  The statutory restrictions on a Restricted Byway have exemptions for people with a private right.

It is possible the plan with a brown tinted roadway may be confusing things - e.g. if the mortgage company think this is a private RoW and don't understand why the highway authority is getting involved.  But this situation isn't incorrect.  In your position having the private right gives you additional protection, for example if the highway authority wanted to stop up the highway (rights) then you could fall back on the private right of way.  A variation on that theme happened when the roadway became a restricted byway - and that restriction shouldn't interfere with your private right.

A possible issue could be if the property isn't "adjoining or adjacent" to the byway. Then it gets more complicated.

propertyrental

another potential issue might be maintenance? If  the road is "leased to a private company who mine further up the road" what kind of vehicles do they use and how frequently/ Regular use by heavy vehicles could be causing damage - who fixes it or would you have to buy yourself a 'proper' 4x4 (as opposed to a city-use pretend 4x4!)

20 years use by the sellers could provide for a prescriptive easement ( though I believe that has to be 20 years use without consent).

Similarly, an easement by Necessity might be created.

In either case, a Statement of Truth by the seller confirming the uninterrupted use for 20 years would help

stuhse

propertyrental said:

20 years use by the sellers could provide for a prescriptive easement ( though I believe that has to be 20 years use without consent).

Similarly, an easement by Necessity might be created.

These are not necessary as the property enjoys a documented right of way.

stuhse

From the information given the track is owned by the farmer and the property being purchased has a right of way granted over it. All good so far.  My understanding is that the fact that the track has other rights of way over it for the public is not relevant as the right to use the track by the property owner is separate ie via the grant stated in the deeds.

The questions to ask/ verify are....have there been any problems or disputes over the right of way or use of the track during their ownership.  Has it ever been blocked.   What have the arrangements for maintenance been ?   The other thing to check is that its extent is clearly defined, eg on the plan are there any widths stated or are there clear features on the ground that define its width.

bouicca21

Might it be useful to know if the right of way extends to vehicles?

stuhse

bouicca21 said:

Might it be useful to know if the right of way extends to vehicles?

Assuming the area marked brown is wide enough for vehicles, then the wording indicates it does.

AlexMac

Penri1980 said:

… my mortgage lender, they've asked for further assurances regarding the access to the property…

I was wondering whether anyone on here had any similar experience or advice?..

Mortgage lenders; doncha luvvem?

In terms of “similar experience”, yes;

Our last home was on a large estate of several hundred homes, dating from the 1800’s; set on about a square mile of private roads. So like yours, albeit on a larger scale , and with well established arrangements about roads and grounds maintenance, covered by (very reasonable ) service charges. 

Ours was one of six flats in an 1850’s converted mansion and we and our neighbours had no problems buying and selling or raising mortgages … until one new buyer’s lender suddenly and unexpectedly asked for the same evidence of unrestricted access as yours has done. ( it was a shared freehold company which we managed ourselves, so we knew the ins and outs of each others’ business; in fact I was responsible for the finances and did the responses to solicitor’s pre sale enquiries). 

And in terms of “advice”… surely your solicitor  should be able to magic up a solution, albeit at a cost?

We all thought the request was silly, as there had been unrestricted access for over 150 years, and no other lender had raised the issue in our collective experience. But my neighbours who were selling could hardly tell their buyer to find a more flexible lender? So their (the sellers’) solicitor had to approach the owner of the roads for some bit of legal fiddle faddle document (at surprisingly high expense) to keep the buyers’ lender happy. 

And in an unrelated past purchase of my own, when my bank (the NatWest, with whom I’d been for over 30 years) proved tricky (“approving” a loan, but subject to a 100% retention pending four unnecessary surveys - full structural, timber/damp, roof, trees…!) I luckily found another - the Halifax, who needed nothing more than a drive-by valuation?

so, good luck; I hope your solicitor can come up with better advice than us random bunch off the interwebby (albeit that the posts above seem well informed and helpful)

propertyrental

stuhse said:

propertyrental said:

20 years use by the sellers could provide for a prescriptive easement ( though I believe that has to be 20 years use without consent).

Similarly, an easement by Necessity might be created.

These are not necessary as the property enjoys a documented right of way.

Oh I quite agree. But the lender seems unsatisfied by this so I was suggesting additional rights that could be put to the lender!

stuhse

propertyrental said:

stuhse said:

propertyrental said:

20 years use by the sellers could provide for a prescriptive easement ( though I believe that has to be 20 years use without consent).

Similarly, an easement by Necessity might be created.

These are not necessary as the property enjoys a documented right of way.

Oh I quite agree. But the lender seems unsatisfied by this so I was suggesting additional rights that could be put to the lender!

Got you,  i would have thought that sending the lender a copy of the deeds and the plan which detail the ROW , perhaps a copy of the farmers deeds if they are available, is the legal proof of the right of way...its hard to see what else could be requested....i guess a statement of truth from the vendor helps, but has far less legal standing than the deed itself.

propertyrental

stuhse said:

propertyrental said:

stuhse said:

propertyrental said:

20 years use by the sellers could provide for a prescriptive easement ( though I believe that has to be 20 years use without consent).

Similarly, an easement by Necessity might be created.

These are not necessary as the property enjoys a documented right of way.

Oh I quite agree. But the lender seems unsatisfied by this so I was suggesting additional rights that could be put to the lender!

Got you,  i would have thought that sending the lender a copy of the deeds and the plan which detail the ROW , perhaps a copy of the farmers deeds if they are available, is the legal proof of the right of way...its hard to see what else could be requested....i guess a statement of truth from the vendor helps, but has far less legal standing than the deed itself.

Presumably the OP's solicitor is also acting for the lender, so will have either already sent the lender (his client) the relevant deeds, or indeed might have advised the lender in his capacity as their solicitor that the ROW in the deeds is insufficient!