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

user1977

propertyrental said:

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.

indeed might have advised the lender in his capacity as their solicitor that the ROW in the deeds is insufficient!

Yes, as with many similar scenarios I expect what the lender "wants" is actually just them nodding along to whatever the advice is from the solicitor.

Penri1980

Thanks for all your input on this matter, it's given me hope! In response to some of your queries, the restricted byway connects the main road directly to the edge of the property so it is directly adjacent. In terms of the Statement of Truth, I know that the vendors have already answered that they have never had any issue accessing the property as part of the queries submitted by my solicitor. I don't have the dimensions of the road, but it is certainly wide enough for any type of vehicle and even has a layby that I parked in when viewing the property. The surface of the road looks well maintained, but I'm not aware who's maintained it and I don't believe that there's any agreement in place for the current owners to contribute to the road's maintenance, but will double check. When I spoke to my solicitor on Friday, he said that he will chase the lender for a response and will communicate his opinion that due to the right of way stated in the deeds and the continued, unobstructed use of the road by the current owners for over 20 years that he doesn't think that there's a problem. Hopefully the lenders will nod along and finally approve the mortgage so we can get things moving, and the chain of 5 properties above us can breathe a sigh of relief. Thanks again for your help, I will keep you posted.

Penri1980

Not a great update on this one I'm afraid, so any further advice would be appreciated.

Last week my solicitor submitted this substantive response below to Nationwide:

'We confirm that the sole access to the property is via a restricted byway which is a highway over which the public is entitled to travel on foot, horseback and with non-mechanically propelled vehicles.

In 2007 the vendor applied to the Land Registry in an attempt to regularise the position and provided the Land Registry with a Statutory Declaration (a copy of which is attached). Following receipt of the Statutory Declaration, HM Land Registry proceeded to include Entry A:2 within the title to the property, being CYM56800, and we attach a copy of the same. This confirms that the land has the benefit of a right of way over the roadway tinted brown on the title plan. As you will note from the title plan attached, the route of the brown covers the extent of the access.

We have reverted to the Local Council who have confirmed that it is indeed an offence to drive a mechanically propelled vehicle over a restrictive byway without lawful authority. Evidently the title confirms that there is a right of way over such access. Without lawful authority access to the property would be limited to the restrictions of a restricted byway, this being a right to travel on foot, horseback and with non-mechanically propelled vehicles.

We are in receipt of historic documentation between the vendor and the legal proprietor of part of the road establishing the use of the access. Regarding maintenance of the access road title documentation is silent on any such matters however, we have received confirmation from the Council as follows – “please note that the surface of the restrictive byway would only be repaired by the Council up to its status and the neighbourhood in line with its current work priorities. In most circumstances this would be a standard suitable for pedestrians, cyclists or equestrian use. The Council does have powers under Section 59 of the Highways Act to recover expenses if damage to a public highway/PROW has been caused by extraordinary traffic. We could not confirm that action would not be taken. Any improvements to the service of a public right of way should be approved by the Council’s Countryside Team prior to works.'

Nationwide have this morning rejected the position on the basis that 'the Valuer has confirmed that the absence of a legal right to access the property by motor vehicle is likely to have significant adverse impact on saleability and mortgageability', which to me seems to ignore my solicitor's statement that 'Evidently the title confirms that there is a right of way over such access.'

I have asked whether he can try and prove the legal right of access by any other means, such as pointing to this section of Road Traffic Act 1988:

https://www.legislation.gov.uk/ukpga/1988/52/part/I/crossheading/use-of-motor-vehicles-away-from-roads

Section34, sub section 2A:

'It is not an offence under this section for a person with an interest in land, or a visitor to any land, to drive a mechanically propelled vehicle on a road if, immediately before the commencement of section 47(2) of the Countryside and Rights of Way Act 2000, the road was—

(a)shown in a definitive map and statement as a road used as a public path, and

(b)in use for obtaining access to the land by the driving of mechanically propelled vehicles by a person with an interest in the land or by visitors to the land.'

I am still hoping that we can find a way though to completion, as we really have our hearts set on the property, but am rapidly losing hope, so if anyone has any suggestions (e.g. alternative lender, changing solicitor etc) I would be most appreciative.

Section62

Penri1980 said:

Not a great update on this one I'm afraid, so any further advice would be appreciated.

Last week my solicitor submitted this substantive response below to Nationwide:

'We confirm that the sole access to the property is via a restricted byway which is a highway over which the public is entitled to travel on foot, horseback and with non-mechanically propelled vehicles.

In 2007 the vendor applied to the Land Registry in an attempt to regularise the position and provided the Land Registry with a Statutory Declaration (a copy of which is attached). Following receipt of the Statutory Declaration, HM Land Registry proceeded to include Entry A:2 within the title to the property, being CYM56800, and we attach a copy of the same. This confirms that the land has the benefit of a right of way over the roadway tinted brown on the title plan. As you will note from the title plan attached, the route of the brown covers the extent of the access.

We have reverted to the Local Council who have confirmed that it is indeed an offence to drive a mechanically propelled vehicle over a restrictive byway without lawful authority. Evidently the title confirms that there is a right of way over such access. Without lawful authority access to the property would be limited to the restrictions of a restricted byway, this being a right to travel on foot, horseback and with non-mechanically propelled vehicles.

We are in receipt of historic documentation between the vendor and the legal proprietor of part of the road establishing the use of the access. Regarding maintenance of the access road title documentation is silent on any such matters however, we have received confirmation from the Council as follows – “please note that the surface of the restrictive byway would only be repaired by the Council up to its status and the neighbourhood in line with its current work priorities. In most circumstances this would be a standard suitable for pedestrians, cyclists or equestrian use. The Council does have powers under Section 59 of the Highways Act to recover expenses if damage to a public highway/PROW has been caused by extraordinary traffic. We could not confirm that action would not be taken. Any improvements to the service of a public right of way should be approved by the Council’s Countryside Team prior to works.'

Nationwide have this morning rejected the position on the basis that 'the Valuer has confirmed that the absence of a legal right to access the property by motor vehicle is likely to have significant adverse impact on saleability and mortgageability', which to me seems to ignore my solicitor's statement that 'Evidently the title confirms that there is a right of way over such access.'

I have asked whether he can try and prove the legal right of access by any other means, such as pointing to this section of Road Traffic Act 1988:

https://www.legislation.gov.uk/ukpga/1988/52/part/I/crossheading/use-of-motor-vehicles-away-from-roads

Section34, sub section 2A:

'It is not an offence under this section for a person with an interest in land, or a visitor to any land, to drive a mechanically propelled vehicle on a road if, immediately before the commencement of section 47(2) of the Countryside and Rights of Way Act 2000, the road was—

(a)shown in a definitive map and statement as a road used as a public path, and

(b)in use for obtaining access to the land by the driving of mechanically propelled vehicles by a person with an interest in the land or by visitors to the land.'

I am still hoping that we can find a way though to completion, as we really have our hearts set on the property, but am rapidly losing hope, so if anyone has any suggestions (e.g. alternative lender, changing solicitor etc) I would be most appreciative.

I feel your solicitor hasn't done you any favours in the way they phrased some of the response to Nationwide - there is perhaps a bit too much emphasis on offences, and not enough on the rights enjoyed by this property.  Was it someone from the council who used the words "restrictive byway"?  If so, it might indicate they don't have the in-depth knowledge of highway law to be able to give your solicitor the information you need.

Unfortunately I suspect that now Nationwide have concluded "...the absence of a legal right to access the property by motor vehicle..." it will take a lot to convince them there is a vehicular access right after all.

It might prove futile, but if you really want the property then one approach might be for your solicitor to get advice from a highway law expert who could look at the papers and give clear advice that there is (or isn't) a vehicular right in this case.  This isn't a recommendation as such, but Michael Orlik is regarded as one of the leading experts on highway law (his book 'An Introduction to Highway Law' is regarded as the highway engineer's bible) and it is him that I personally would go to if something was really important and I needed an authoritative opinion.  It doesn't mean Nationwide will listen though.

Penri1980

Thank you so much @Section62 for your suggestion of contacting Michael Orlik. He doesn't work much these days as he's 80 years old, but after reading this post was confident that there is a vehicular right of way to the property so put me in touch with a colleague at Lodders solicitors. They agreed with his view and suggested that I advise my own conveyancing solicitor that a response to Nationwide along the following lines might be helpful:

'Section 34(1)(b) of the Road Traffic Act 1988 makes it is a criminal offence for a person to drive a mechanically propelled vehicle without lawful authority on any footpath, bridleway or restricted byway. 

However, it is not an offence if done by a person with an interest in the land if immediately before the commencement of s.47(2) of the Countryside and Rights of Way Act 2000 on 2 May 2006, the road was shown on the definitive map as a road used as a public path and was in use for obtaining access to the land by the driving of mechanically propelled vehicles by a person with an interest in the land or by their visitors.

Even if the restricted byway was not shown on the definitive map or statement on 1 May 2006, s.67(5) of the Natural Environment and Rural Communities Act 2006 provides that where, immediately before the commencement of NERCA on 2 May 2006, the exercise of the existing vehicular right of way was:

•         reasonably necessary to enable a person with an interest in the land to obtain access to the land, or

•         would have been reasonably necessary to enable that person to obtain access to a part of the land if he had had an interest in that part only

the right becomes a private right of way for mechanically propelled vehicles for the benefit of the land or the relevant part of the land and driving along the restricted byway is not a criminal offence.'

Nationwide had an additional query regarding the maintenance of the road, but again, the solicitor from Lodders helped me out by pointing to the relevant legislation and case law. 

8 months after we had the offer accepted, we finally completed on the purchase of our beautiful home last Friday and are in the process of moving in, so your help has been invaluable in that process and is greatly appreciated. Thanks again

Section62

Penri1980 said:

....

8 months after we had the offer accepted, we finally completed on the purchase of our beautiful home last Friday and are in the process of moving in, so your help has been invaluable in that process and is greatly appreciated. Thanks again

Great news, thank you for feeding back your experience and the outcome.  I thought if anyone could help you with a definitive answer it would be Michael Orlik, and I'm glad he was able to help point you in the right direction.

Enjoy your new home (and right of way)!