Unowned access to garden

Thebestcracqui

We are a few weeks down the line of purchasing a house which has a secondary garden area, accessed by a narrow path around 6 metres long from the back garden immediately behind the house.

The title deeds have come through and the ownership of both gardens is clear, but the path is not owned by the seller. It is behind the large gated fence of a public park, so I assume it is owned by the council. The official access on the deeds is via the back of the secondary garden, which would require walking out the front, down the street up and round, at least a 5 minute walk.

They have been in the property 11 years and at the moment I am assuming it has been accessed by the previous owners in this way for a number of years if not always.

Obviously we will speak to our solicitor about this issue and take their legal advice, but I wondered if anyone had experienced similar in practice.

From what I understand they / we (?) could claim adverse possession, but risk highlighting it is being used and a claim being rejected by the council, so they may be unwilling to do this and may be risky for us also.

I have read about adverse possession insurance, but I’m not sure what the insurance would be for if that makes sense - it would be more our enjoyment of the secondary garden, could a value be put on that? I have read that lenders would be interested in terms of this if it had a potential impact on the value of the house (the secondary garden is quite huge so having immediate access or not would I imagine impact the value). We have received our mortgage offer and so not sure if this is a boat worth rocking.

We are seeing this as our forever home, or at least 20 year + house, so I am less concerned about issues with selling, but having easy access to the secondary garden is certainly part of that long term plan!

Many thanks in advance,

user1977

- it would be more our enjoyment of the secondary garden, could a value be put on that? …(the secondary garden is quite huge so having immediate access or not would I imagine impact the value)

If the use of the garden has a material effect on the value of the overall property, that's the minimum you'd want to insure against. In practice such policies are generally for the whole value you're paying, rather than anyone trying to figure out what lower amount would be relevant. And in practice, the insurers would go for the cheapest solution, which is likely to be paying the relevant neighbour for formal access rights.

Section62

https://forums.moneysavingexpert.com/discussion/6674295/unowned-access-to-garden

From what I understand they / we (?) could claim adverse possession, but risk highlighting it is being used and a claim being rejected by the council, so they may be unwilling to do this and may be risky for us also.

If the adverse possession relates to the path, and the path forms part of a public park, would you be able to show the current owners have occupied the land exclusively?

A sketch plan might help us better understand what is going on.

Dustyevsky

I'm not sure if you could easily claim adverse possession, so much as a right of access by prescription, which would require you prove frequent use of the path over a period of 20 years, without any exclusivity involved.

Others will put me right if I'm mistaken, but we have a neighbour with a specific right over our land, because they can prove use over 20 years. Ownership, as in adverse possession, isn't in question.

Thebestcracqui

https://forums.moneysavingexpert.com/discussion/comment/82051479#Comment_82051479

Thanks - of course - here it is - the small section in white there is the path and the space behind that and the red is a public park.

Thebestcracqui

That does make sense, and it’s not that we feel the need to have ownership - we just want to continue to use it.
I assume that the owner would need to have evidence from the previous owners that they had been using it for 10 years at least themselves then as well. There was only the sellers purchase available on rightmove so assume the previous owners had had it during that whole period and prior to digitised records.

They have been asked if they have any documentation relating to its use/access/ ownership and we are waiting to hear back.

Section62

https://forums.moneysavingexpert.com/discussion/comment/82051531#Comment_82051531

So is the path (the white area) fenced off from the park, and is the gate you mentioned in this fence, which would allow access between the park and the path?

Generally councils wouldn't let people fence off public land without permission - so my gut feel is either this path has nothing to do with the park, or else there may be some agreement between the council and the property owner which allows this arrangement (but the details have been forgotten by the owners over the years).

If the land is fenced but there is a gate into the park then I'd lean towards the latter option.

Just for clarity, is the brown tinted area also owned by the council, and are the deeds clear that there is a right of way over this area to access the second garden? Does it refer to some agreement between the council and the property owner?

Thebestcracqui

https://forums.moneysavingexpert.com/discussion/comment/82051551#Comment_82051551

Thanks for looking at this!

The path has fences either side - the park and then the neighbour on the other side - there is a gate into the park, but it is at the back of the second garden. So yes the brown section is owned by the council but the deeds are clear that that is the right of access to the garden. Which is why in a worse case scenario if this path was ever reclaimed then that would be the only way to access which is a few minutes walk from the house.

Does the fact the path is a specific sectioned off boundary mean anything I wonder, would there be any way to find out ownership of this, assuming the sellers aren’t able to come forward with this?

Section62

https://forums.moneysavingexpert.com/discussion/comment/82051566#Comment_82051566

Does the fact the path is a specific sectioned off boundary mean anything I wonder, would there be any way to find out ownership of this, assuming the sellers aren’t able to come forward with this?

Have you checked older maps to see whether the blue tinited area used to be part of the park?

The arrangement is pretty unusual. My guess is at some point the council agreed to sell the blue tinted area to this property owner and part of that agreement involved them having access via the brown tinted area (is the access for vehicles as well as pedestrians?). However, the council also agreed the more direct pedestrian access over this path but on a less formal basis - for example some form of licence. This would explain why the path exists and is fenced off, but isn't shown as land owned by the property.

Because parks are typically secured at night (e.g. high fences and locked gates) it would be understandable the council would want the path fenced off so the park security wasn't compromised, and for the same reason it would be understandable the owner of the property would want to keep the public out of their gardens.

If the council has given permission for the path (and I think it very unlikely they've just allowed someone to fence part of the park off) then AP isn't an option.

There is an alternative scenario in which the blue tinted land belonged to the developer who built the houses, and disposed of this land to a willing buyer when the development was completed. There should be enough information in the deeds to figure out which was the case.

TBH the correct thing to do would be to approach the council and ask them if they own the land and have given consent for it to be used in this way. However, if they are unaware of this use and any agreement then their response may be to put a stop to it. So you may feel on balance it is better to follow the (likely) lead of the previous owners and let sleeping dogs lie.

In terms of value, not having the direct path would have a negative effect…. but if there are vehicular access rights over the brown tinted area then I'd guess there is some potential development value for this land (subject to covenants and planning etc) which would almost entirely negate the loss of value in not having the direct connection via the path.

user1977

However, if they are unaware of this use and any agreement then their response may be to put a stop to it.

Plus any such contact would invalidate indemnity insurance, if that was going to be an alternative solution.

silvercar

have you downloaded the deeds for the Land Registry and seen if either there is a mention of it or a reference to any other documents that may show this as a right of way.