Old shared use agreement help

Ocho27

Hello all
We own an old house in Kent with a driveway at the back that gives shared access to a couple of neighbouring properties.  One of these properties has not used the access for 20+ years as it is a commercial premises (used by a handful of one/two person businesses).
That properties is on the market and the prospective owner has applied for permission to change to residential use and also to put a car charger at the rear which gives a clear intention to use that access again.
Since we moved in 4 years ago we have been parking on our driveway, but if they are to use theirs and have access then clearly this could cause a problem as they won’t be able to come and go with our car there (so I guess we wouldn’t be able to park there).

My question is how do we find out exactly what the legal position is with access.  The deeds are extremely unclear as to what the actual access situation is (ie pedestrian or vehicular is not stated).  

The only reference we have to any potential access across our driveway is on a register (from the Land Registry) for our property, which states that rights are reserved by “a conveyance of the land in this title dated 28 December 1964” that refers to an “adjoining property known as XXXXXXX”.  The property named XXXXXXX is uncertain as there is no property of that name now, but we assume for the sake of this query that XXXXXXXX is the property having a proposed change of use.

The access given according to that historical conveyance appears to be limited to “all reasonable times upon giving due notice thereof with or without workmen and appliances for the purpose of repairing and maintaining the said adjoining property known as “XXXXXXXXX”

This sounds very much like occasional access, ie we could still park our car on our driveway rather than constant use for their family car (we couldn’t).

When we bought the house our solicitor was unable to identify the true location of XXXXXXXXX.  Can anyone help with how we might identify that property as the one applying for change of use, or find details of the 1964 conveyance or offer any other help or direction please?

many thanks in advance.

user1977

Have you tried looking at old maps? Or the current registered title (assuming there is one) for the neighbouring property?

FlorayG

Old parish records or old planning permission records - probably all archived so could be a long search, but property XXX must be there somewhere. If it was demolished then the access I would think no longer applies. Is the potential home an old building like yours or much newer?
Also, I think from what you say, the access allowed is for maintenance only and not regular. You need to speak with the conveyancing solicitor I think, as they will then relate the potential problem to the prospective buyer

Mum247ConsultantByDay

This is a common issue with older properties, especially when access rights are vague or poorly documented. 

Let’s break down the key concerns and steps your neighbour can take to clarify the situation.

1. Understanding the Access Rights (Easements)

The historical conveyance from 1964 seems to refer to access rights for the property known as “XXXXXXXXX” for maintenance and repairs, which suggests limited, occasional access rather than full, unrestricted access for regular vehicle use.

However, access rights, even if historical, are legally binding if properly recorded. Here’s how to proceed:

2. How to Identify the Property 'XXXXXXXXX'

• Land Registry Searches: The Land Registry is the best starting point to clarify the situation. You can perform a Land Registry search to identify current and past owners of the neighbouring properties. Your solicitor or a conveyancer can help with this, or you can request a copy of the Title Register and Title Plan for properties adjacent to yours.

• You may need to check the land title numbers for surrounding properties, and a Title Register search should identify the correct property currently or historically known as “XXXXXXXXX.”

• You can order a copy of the original 1964 conveyance directly from the Land Registry by completing an OC1 form, which should contain more details on any access rights. It will provide clearer language about what the rights entail (whether they are pedestrian or vehicular, permanent or temporary).

3. Determine the Nature of the Access Right

• Occasional vs. Permanent Access: Based on the wording in your deed, the access appears limited to maintenance or repair work, which could mean occasional rather than continuous vehicle use. This distinction is important.

• Limited Easements: The access might only be for “reasonable times upon giving notice,” which suggests that continuous use, like for parking or daily access with a car, may not be permitted.

• No Mention of Vehicular Access: If the conveyance only mentions general access (and not specifically for vehicles), this might further support the idea that only limited access for specific purposes is allowed. A property law solicitor can help interpret the language of the easement.

4. Check the Planning Application for Change of Use

• Planning Portal: You can search for the planning application for the neighbouring property (or prospective property) via your local council’s planning portal. This will give you details about the proposed change of use from commercial to residential. It may also provide plans or drawings indicating their intended use of the driveway.

• Objecting to the Application: If the planning application involves work that you believe would violate or expand access rights beyond what the 1964 conveyance allows (for example, adding a car charger suggests increased vehicular access), you can submit a formal objection. In your objection, reference the limited nature of the access right as outlined in your title deeds and the conveyance from 1964.

5. Seek Legal Advice Regarding Easements

Since the conveyance from 1964 may restrict the neighbouring property’s right to access, it's worth consulting a property law solicitor. They can:

• Interpret the 1964 conveyance and determine whether the access rights are limited to occasional or pedestrian use.

• Advise on parking restrictions: If their access rights are only for maintenance, your solicitor can confirm whether you have the right to continue parking on your driveway without violating their access rights.

• Challenge any misuse: If the neighbouring property attempts to use the driveway for more than what’s legally allowed (e.g., daily vehicle use or construction of a car charger), you could potentially challenge this legally.

6. Further Steps to Take

• Speak to the Prospective Owner: You might want to reach out to the prospective buyer or the current owner of the neighbouring property. Sometimes, an amicable, good old fashioned discussion can resolve a whole heap of concerns before formal legal action is necessary.

• Ask the Seller for a Deed of Easement Clarification: The seller of the neighbouring property might have more information about the current easement arrangement. They are legally obligated to disclose any easements that affect the property during the sale process.

7. Possible Potential Outcomes

• Limited Access Maintained: If the 1964 conveyance only allows access for specific purposes (e.g., maintenance), the new owner would not have the right to use the driveway for daily vehicle access.

• Full Vehicular Access: If, however, the conveyance is found to include vehicular access, you may need to adjust how you use your driveway to ensure it remains clear for them to exercise their rights.

• Alteration or Agreement: If vehicular access is allowed but problematic, you might consider negotiating a mutual agreement with the new owner about the use of the driveway, such as sharing space or setting specific terms for parking and access.

Suggested Action Plan:

1. Obtain Land Registry documents to clarify the exact wording of the 1964 conveyance and identify the property “XXXXXXXXX.”

2. Consult a solicitor to interpret the easement and understand whether the access is occasional (maintenance) or includes daily vehicular use.

3. Review the planning application and consider submitting an objection based on the nature of the access rights if the new use would conflict with your property rights.

4. Negotiate with the prospective owner if possible, to come to a mutually agreeable arrangement regarding driveway use.

By clarifying the legal access rights, you can ensure that your property’s value and your ability to park on your own driveway are not compromised.

Hope this helps 
Please let us know how you get on.