Conveyancing and access to the public highway

NordicNoir

A quick question for anyone with a conveyancing background….

When buying a house that can only be accessed by crossing private land to get to the public highway, is it standard practice that the conveyancer will require that an easement is shown in the original transfer documentation (TP1), or other legal document? As in, it is not just ‘nice to have’ but 100% crucial?

Thanks for any help!

Grumpy_chap

What type of private land is being crossed and what are the current arrangements for crossing the private land?
Is this a 'ransom strip' or something else?

NordicNoir

Grumpy_chap said:

What type of private land is being crossed and what are the current arrangements for crossing the private land?
Is this a 'ransom strip' or something else?

Thanks Grumpy_chap, but I am not looking for advice on a specific house, this is more of a query on the conveyancers procedure be relating to access.

la531983

Surely it depends on the specific circumstances. If its someone who hasnt bothered to drop the kerb when putting a driveway in and you have to drive across a pavement to access it, there is next to no chance an "easement" exists.

NordicNoir

la531983 said:

Surely it depends on the specific circumstances. If it’s someone who hasn't bothered to drop the kerb when putting a driveway in and you have to drive across a pavement to access it, there is next to no chance an "easement" exists.

I had not thought of that one!   A private road owned by a 3rd party, as in, not adopted by the council.

Put another way, if the conveyancer is aware that to get to your property you have travel across a private road, and there are no specific rights granted in any of the legal documents, would they consider that something that MUST be put right?

I was trying to avoid specifics as there is a tendency in forums for things to go off on a tangent and not answer the question that was actually asked 
I do appreciate your help though!

user1977

I would expect the issue at least to be pointed out and explained to a buyer, even if the history makes it relatively low risk (which can generally be insured against).

Section62

la531983 said:

Surely it depends on the specific circumstances. If its someone who hasnt bothered to drop the kerb when putting a driveway in and you have to drive across a pavement to access it, there is next to no chance an "easement" exists.

That doesn't follow.  You don't have to have a dropped kerb unless the circumstances and the highway authority require one, and the dropped kerb (if needed) is independent of any rights over land owned by a third party.

la531983

Section62 said:

la531983 said:

Surely it depends on the specific circumstances. If its someone who hasnt bothered to drop the kerb when putting a driveway in and you have to drive across a pavement to access it, there is next to no chance an "easement" exists.

That doesn't follow.  You don't have to have a dropped kerb unless the circumstances and the highway authority require one, and the dropped kerb (if needed) is independent of any rights over land owned by a third party.

There have been a few cases near me where people have been forced to get a kerb dropped after putting a drive in, so its certainly a "thing" here.

daveyjp

No need for an easement. A right to pass over the land is all that is required.

Section62

MichelleUK said:

...
Put another way, if the conveyancer is aware that to get to your property you have travel across a private road, and there are no specific rights granted in any of the legal documents, would they consider that something that MUST be put right?
...

As user1977 says - pointed out and explained should be a minimum.

As to putting it right, there will be cases (not infrequently) where it isn't possible to correct the lack of documented rights - for example where the ownership of the private road is unknown, so there is nobody to formally request those rights from.  These could be cases where easement by prescription or easement by neccessity might apply, but if there is no known owner of the road then there is nobody to stop its use (lawfully) so a court might be reluctant to grant an explicit right.

In other words, a conveyancer cannot always insist this is something which "must" be put right, as doing so could be impossible.  Pragmatism and indemnity insurance are sometimes the best way forward.

NordicNoir

Section62 said:

MichelleUK said:

...
Put another way, if the conveyancer is aware that to get to your property you have travel across a private road, and there are no specific rights granted in any of the legal documents, would they consider that something that MUST be put right?
...

As user1977 says - pointed out and explained should be a minimum.

As to putting it right, there will be cases (not infrequently) where it isn't possible to correct the lack of documented rights - for example where the ownership of the private road is unknown, so there is nobody to formally request those rights from.  These could be cases where easement by prescription or easement by neccessity might apply, but if there is no known owner of the road then there is nobody to stop its use (lawfully) so a court might be reluctant to grant an explicit right.

In other words, a conveyancer cannot always insist this is something which "must" be put right, as doing so could be impossible.  Pragmatism and indemnity insurance are sometimes the best way forward.

That is really useful, thanks!

Say the original TP1 stated that you had rights to use the road coloured green on the attached plan, but there was no road coloured green, would the conveyancer ask that a deed of variation to be drawn up to clarify this? Presumably, if indemnity insurance is used, that would only cover the current buyer whereas a deed of variation will cover future buyers too?