Property access issues? What to check before buying a property

Updated: March 27, 2018

What should you do if you have to cross someone else's property to reach the front door of your new home? How can you find out before you make an offer?

Flying freehold

For a property to be deemed 'good and marketable' it must have legal access, otherwise it is 'landlocked'. Your mortgage provider may refuse to offer funding for a home where the access is in dispute, so it is important to resolve these issues before making offering to buy a property.

Are you buying a property? Check out our guide on comparing conveyancing quotes and find out how to read between the lines.

Rights of way or easements

If you are buying a property where access is gained via a neighbour's land, then that right of access is an example of an easement.

The easement defines is a private right of way for anyone with a legitimate purpose for visiting the land, usually the rightful owner, his immediate family who live there, any staff who work there and anyone visiting the land for social, business or duty reasons.

Easements 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 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.

Implied

Rather than by deed, implied easements are created by the courts who look at the intention of the original parties and how the property is being used.

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

Because this easement was not expressed (perhaps the vendor overlooked the need to reserve a right of way) the right of way should be limited, say on foot rather than by vehicle, but it is important to establish this as he may later claim a right to drive across your land.

Necessity

An easement may be created of necessity. Therefore a parcel of land will have a right of way of necessity over a road, track or path leading to it if that route is the only means of access between the public highway and that parcel of land.

Prescription

Where a property owner can show a long and continuous use of the access for 20 years a prescriptive easement can be established. However the use needs to have been without the owner's consent and done openly over that period of time.

If the owner challenges the right of way before the 20 year period then 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 and swear a Statutory Declaration to that effect.

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

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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 extinguish. An easement cannot be sold separately from the land but must be passed on with the land whenever the land is transferred to a new owner.

If the property you intend to buy has an easement across it, you may wish to consider what that might mean if the large family next door continually have to walk past your windows.

Gaynor Haliday, Legal researcher

About the author

Gaynor Haliday is an experienced legal researcher and published author. She has had numerous articles published in the press and is a legal industry commentator.

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