What happens if you are buying a property that requires a right of way, but there are no registered rights on the property title?

We can come across instances where a client is purchasing a target property that is accessed directly from  roadway. The local authority search reveals that the roadway is not publicly adopted. This means it is not maintained at public expense. If it is not publicly adopted, you would require specific rights of access over the roadway to access the target property.

But what happens if there are no rights registered on the target property’s title?

• Additional Enquiries with the Seller’s Solicitors

In the first instance, we would raise additional enquiries with the seller’s solicitors to find out more information about the access arrangements by the Seller, during their period of ownership. This would include referring to the Property Information Form completed by the Seller at the outset of the transaction.

It would also extend to raising enquiries with the Seller’s solicitors to ascertain whether there have been any issues in the Seller accessing the roadway, and whether they are aware of other third parties exercising rights over the roadway. We would also enquire whether the Seller has been required to pay any contributions for the use of the roadway during their ownership.

• Index Map Search

If the roadway is unregistered, we would carry out an Index Map Search. An index map search confirms whether a property is registered at the Land Registry. If it is registered, the search will reveal the relevant title number. If it is not registered, the search would show whether the roadway was subject to any pending applications for registration or caution against first registration.

Essentially, this search assists in our due diligence to ascertain whether the lack of easement over the roadway would be a cause for concern in proceeding in the transaction. Depending on the results of the search, we would possibly raise further enquiries with the Seller’s solicitors.

• Statutory Declaration or Statement of Truth

Subject to the above, we would require the Seller to provide a formal statutory declaration or statement of truth confirming their use of the roadway to access the target property. This is to assist in providing evidence to support a future claim to a prescriptive right of way over the roadway.

Broadly speaking, prescription is the acquisition of a right through long use or enjoyment. The Land Registry will require the right to have been exercised for at least 20 years and have been exercised “as of right” that is, without force, without secrecy, without permission. If the application was successful, then the Land Registry would register a formal prescriptive easement on the target property title. This can be completed post-completion of your purchase of the target property.

• Absence of Easement Indemnity Policy

We would also look to the Seller to provide an Absence of Easement Indemnity Insurance Policy at their expense. This policy would protect against potential financial losses that may be incurred arising from a future dispute of the use of the roadway.

It would not rectify the potential defect in title of the target property. We would also add, that in a similar way to other insurance policies, a claim under an indemnity policy is not guaranteed.

How can we help?

 In determining whether a lack formal right of access to benefit a target property will be an issue, it will largely depend on the circumstances of the case. We would need to have regard to the funding of the purchase, for example whether a mortgage was required to fund the purchase of the target property.

We would also need to consider the length of the Seller’s ownership, their use of the roadway, whether there have been any disputes concerning use of the roadway, whether the roadway is registered under a separate title, and any other factors that be relevant in the case. However, if this issue does arise in a property purchase, there are various ways we can mitigate the potential risk to the property, such as through an Absence of Easement Indemnity Insurance, and supporting Statements of Truth or Statutory Declarations.

Danielle Julyan is a solicitor at Wollens.  We have committed teams in each of our offices who will work closely with you and guide you through the process step by step.

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