What is a Section 278 Agreement?

A Section 278 Agreement is a legal agreement between a developer and a highway authority to carry out highway works.

No Right Of Way? Five Solutions When A Property Has No Recorded Access Rights

Buying a property can be exciting, but sometimes legal issues emerge that are not immediately obvious. One common problem is discovering that a property relies on access over a private road, driveway or track, but there is no clear legal right recorded in the title deeds. This issue can arise in both rural and urban locations and, understandably, can cause concern for buyers and mortgage lenders alike. The good news is that a lack of documented rights does not necessarily mean the transaction cannot proceed.

What is a right of way?

A right of way is a legal right to pass over land owned by someone else in order to access your property.

For example, a house may be reached via:

a shared driveway;
a private lane;
a farm track; or
a road owned by a management company.

Where the right has been properly created, it will usually be recorded in the title deeds or at HM Land Registry.

Why is the issue often discovered during conveyancing?

A seller may assume that because a property has always been accessed in a certain way, it must have the legal right to do so.

However, during the conveyancing process, the buyer’s solicitor will review the title documents and searches to establish whether the necessary rights exist. Sometimes, particularly with older properties, no formal easement or right of way can be located.

What happens if there is no recorded right?

The absence of a recorded easement does not automatically mean that access is unlawful.

A number of possibilities may exist:

1. The right exists but has been missed

Older title documents can be complex. Rights may be contained within historic conveyances, transfers or deeds that have not been referred to in the modern Land Registry title.

Part of your solicitor’s role is to investigate the title thoroughly and establish whether historic rights can be identified.

2. The roadway may be unregistered

Where a private roadway or access track is not registered at HM Land Registry, further investigations can be carried out, including an Index Map Search, to determine ownership and whether there are any pending applications affecting the land.

3. A right may have arisen through long use

In some circumstances, a legal right can arise through long and uninterrupted use.

This is known as a prescriptive easement.

Generally, evidence is required showing that the access has been used:

for at least 20 years;
openly;
without force; and
without permission from the landowner.

Where appropriate evidence exists, it may be possible to apply to HM Land Registry to register the right formally.

4. Evidence can be provided by the seller

Sellers are often asked to provide a Statement of Truth or Statutory Declaration explaining:

how long they have used the access;
whether there have been disputes;
whether anyone has challenged their use; and
whether any payments have been made for use of the roadway.

This evidence can be extremely helpful both for buyers and for future applications to register rights.

5. Indemnity insurance may be available

Where the legal position cannot be confirmed with complete certainty, indemnity insurance may be considered.

An Absence of Easement Indemnity Policy may provide financial protection if a third party later challenges the use of the access. However, it is important to understand that insurance does not create the missing right or remove the underlying title defect. It is simply a financial protection mechanism.

Will a mortgage lender be concerned?

Potentially, yes.

Most lenders will expect the property to benefit from adequate rights of access. Where rights are missing or unclear, additional investigations may be required before mortgage funds can be released.

The lender’s requirements will often influence the solution that is ultimately adopted.

Should you still buy the property?

Every situation is different.

The key questions will usually be:

How long has the access been used?
Has anyone ever challenged that use?
Who owns the road or driveway?
Are neighbouring properties in the same position?
Is mortgage finance involved?
Can evidence be provided to support a claim for a legal right?

Many transactions involving missing easements proceed successfully once the relevant investigations have been completed and suitable protection has been put in place.

How we can help

Missing rights of way and easement issues are often more manageable than they first appear. Early investigation is usually the key.

Our Residential Property team can advise on: