Prescriptive Easements Over Unregistered Land

PiggyBank01 · 11 April 2018 at 6:30PM

Our house and 3 other houses use a shared private roadway for access. I've checked with the Land Registry and the roadway is unregistered. We've been in the house for 6 years, the other owners have been there 20+ years.

We're now selling our house and the buyers solicitor is kicking up a fuss about the lack of right of way. Our solicitor is looking into indemnity insurance to cover it but I wanted to know if anyone else has had this issue and what have they done?

I've been looking into prescriptive easements over unregistered land but getting abit out of my depth.

Thanks in advance.

loveka · 11 April 2018 at 6:45PM

Yes I had exactly the same issue. The answer in our case was indemnity insurance, as the owner of the unregistered land is unknown. It was £250.

The fact is that even if the owner came along and registered the land, you and the other houses would have a prescriptive easement as, presumably your predecessors in the house used the road too?

da_rule · 11 April 2018 at 6:51PM

As has been said, the easement will bind the title should it be registered (assuming that it's not part of the adopted highway).

You may be asked to supply a statutory declaration setting out how long you've used the land for in order to prove the 20 years. The issue will be if you haven't been there 20 years proving your properties use may be somewhat hampered.

You could potentially look to secure your rights over the unregistered land by registering a caution against first registration over the unregistered land.

loveka · 11 April 2018 at 6:56PM

Whatever you do, don't try to find out who owns the land. It will nullify any indemnity.

We didn't have to provide a declaration of trust. However, if you need one you can ask the previous owners if you know where they are.

PiggyBank01 · 11 April 2018 at 8:44PM

Thanks da_rule & loveka for your responses.

It does sound like indemnity insurance is going to be the best way but all I can sign for is 6 years not 20. I could possibly trace the previous owners who were here for 30 years.

I`m slightly worried now though as I have done a Land Registry search against the land, so is that going to nullify any insurance?

When we bought it our solicitor picked up the same but said as all these houses had been using it for 20+ years then they could claim right of way.

Their solicitor has requested that we should get the right of way registered which was why I was looking to do down the Prescriptive Easement route.

Land_Registry · 13 April 2018 at 6:38AM

PiggyBank01 All good advice and your checking whether the road is registered shouldn't be an issue re any policy in my experience. It's if you then went further re trying to identify and contact others that might pose a problem
Ideally when you bought you should have got a stat dec (not a declaration of trust) from your seller and you could have pegged your 6 years on to that if needed and claimed the right - see PG52
But it reads as if it's now a case of giving the buyer's a stat Dec now fir your 6 years and getting the indemnity policy
The other owners having a claim and using it helps to ease any concerns a little but they are unlikely to be enough to back up any claim you might want to try and register. It's your use as the title owner that counts first and you can only cover 6 years. Your neighbours have used it for their win titles' use
Something to discuss further with your solicitor though and referring to the PG52

PiggyBank01 · 13 April 2018 at 3:20PM

Thanks Land Registry

I`ve just looked at PG52 and the ST4 form - if I (6 years continuous use) and the previous owner (30+ years continuous use) filled in the form would that be likely to be sufficient to get a prescriptive easement filed? Or is there other steps I`d need to do as well.

How long does it typically take and what is the typical cost of LR fees?

jevla · 2 March 2020 at 4:10PM

Our only property access is via a 70 year prescriptive easement, registered at L/R over unregistered private land, owner unknown. Following the development of surround land into a housing estate, we are experiencing an increase in use which is interrupting our access in the absence of an owner who can we turn to to stop this

akwexavante · 2 March 2020 at 4:27PM

As i understand what my solicitor said to me was you can only invalidate an indemnity policy if you inform the 2nd party that you have an indemnity policy in advance of a dispute being established. You firstly need written permission of the insurance company before you declare your indemnified. You may only have 6yrs but the next owner adds to your 6yrs when they then sell and so on. The years will be added together as time passes. Your solicitor can find out (You Can't) where your previous owner now lives and can contact them about how many years they had a right of way for and get "supply a statutory declaration", i think i was asked to sign a "Statement Of Oath".. Same thing probably.

akwexavante · 2 March 2020 at 4:46PM

When were the houses built? You'll be able to claim a Right Of Way from the build date.

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Prescriptive Easements Over Unregistered Land

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