What should I check before buying a home with access issues?

Does access to the home you're buying cross a neighbour's garden or driveway? If so, how do I check and what are the legal implications?

Flying freehold

Good and marketable title

A ‘good and marketable title’ is when a property can be sold without legal issue. Both you and your mortgage lender must therefore be satisfied that the property has a ‘good and marketable title’

For a property to have what is known as a 'good and marketable title', the owner must be able to legally access the property. If the property is not legally accessible, it is known as 'landlocked'.

It will be difficult to obtain a mortgage on a landlocked property or when legal access is in dispute. If you can you should seek to resolve any access issues before you make an offer.

Easements and right of way

If you are buying a property that has a right of access via a neighbour's land, this legal right of access is an example of an 'easement'.

An easement will usually define a private right of way for anyone with a legitimate purpose for visiting the property or land, usually the rightful owner, the family or other occupants, any staff who work there and anyone visiting the land for social, business or duty reasons.

An easement can be created in various ways:

Expressed

This is where a right of way is created when the landowner sells part of the land or property, but the landowner also reserves a right of way for either his own benefit or grants a right of way for the new owner. The right is created by deed and registered at HM Land Registry.

Implied

If you are buying a property that has been built in part of a neighbouring property's former garden, for example, you may find that the neighbour has implied access across your land.

Implied easements are common when a property owner sells part of their land (e.g. part of their garden for an infill property to be built) but they omit to grant themselves an expressed right of way in the process.

Implied easements are created by the courts who look at the intention of the original parties and how the property is being used.

Necessity

An easement can be created out of necessity. A parcel of land could have a right of way over a road, track or path leading to the land if that route is the only means of access.

Prescription

If a property owner can show a long and continuous use of access for a period of at least 20 years, a prescriptive easement can be established. However, the use of the access route must have been continuous and the right claimed must be one that could have been lawfully granted.

If the owner challenges the right of way before the 20 year period elapses, any prescriptive right will cease. There may be nothing in the deeds to show this access, so it is better to ask the current owner to prove access has been used continuously, as of right and without interruption for 20 years or more. The conveyancing solicitor will prepare a legal Statutory Declaration and the seller will be required to swear an oath and sign this legal document.

The right can be registered at HM Land Registry and added to the deeds.

Can I remove an easement from the property I want to buy?

Easements should be thought of as lasting forever as they are very difficult to legally nullify. An easement cannot be sold separately from the land and must be passed on with the land whenever ownership is transferred.

If the property you intend to buy has an easement across it, you may wish to consider how it might affect your life at the property. If the large family next door are continually walking past your windows, would you still be happy to live at the property?

Your next step

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Gaynor Haliday, Legal researcher

Author:
Gaynor Haliday, Legal researcher