Country houses for sale

Need to Know: Private rights of way

It sounds like the most obvious thing to say in the world, that you would not buy a property, if you could not get to it. However, when the obstacle to access is legal, rather than physical, it can be surprisingly easy to miss – but just as inconvenient. Two recent examples I have come across were a cottage, the driveway to which ran over a strip of apparently ownerless land before joining the public highway and at the other end of the spectrum, the owners of a landed estate discovering that they had no formal right of access to the hunt kennels, the land surrounding them having been sold off years ago. Bad news for the hounds. The good news was that both could be put right.

When you are buying a property, the question of how to access it is often answered simply; for example, if it directly fronts on to a public highway. Sometimes it is more complicated. If you are buying property that was once part of a larger estate, you should ensure that there is a formal right of access over the estate land to the property. Sometimes it is more difficult still, such as where the current owner has clearly been accessing the property, but there is absolutely nothing whatsoever in the deeds, or indeed in writing, giving him any right to do so.

If you are buying a property to which access is gained over some else’s land, then that right is an example of an easement (or of course, trespass, if there is no formal right). Usually, the right of access will have been granted when the property was separated from the main estate and you should check that document to ensure that appropriate rights were granted. Alternatively, there may be a specific document (such as a deed of grant) setting out the rights. In any case, the main point is that you must have an adequate and appropriate right covering your use of the property now and in the future.  

First, the right must be expressed to benefit and burden the property and the neighbouring land respectively, that is to say, it must be ‘annexed’ to the land benefitting from it and the land burdened by it. It should not be a personal agreement between individuals, as that would not automatically bind new owners of the land. Secondly, it should be clear who is responsible for maintaining and paying for the upkeep. Thirdly, the rights may be described and limited in any number of ways and you will need to check the wording carefully – the rule is, that you cannot make the right wider than it already is (without renegotiating with the landowner, who will doubtless also want some compensation).  

Therefore, if the right says ‘on foot only’, or does not say ‘with or without animals’, or is expressed to be ‘for agricultural purposes only’, or ‘in daylight hours only’, those words will bind you. As an aside, the right to ‘pass and re-pass’ does not include the right to park, whereas the right to ‘use’ the access does. It is particularly important to check the scope of such rights if you are planning to redevelop a property, as they may not extend to any intensification or change of use. In such cases, it may be necessary to negotiate an extension or variation of the existing rights with the adjoining landowner.

If there is nothing in the deeds, but the use of the access is obviously established, you are in the realms of prescriptive rights (those based on long ‘user’ [sic]). Provided that the current owner can prove that the access has been used continuously, as of right and without interruption for 20 years or more and swears a Statutory Declaration to that effect, setting out when, how and how often it has been used, then it should be possible to get the right registered at the Land Registry – registration is the only real way of getting the right ‘cemented’.

This will give you a formal, legal right of access, which will be sufficient for mortgage lenders (who otherwise get a bit iffy about lending on properties you cannot actually get to). As usual, you should require the seller to sort this out whilst he is desperate to sell and will do anything to hasten your money into his hands.

A final thought: beware narrow strips of grassy land. They may be what is known as a ‘ransom strip’. Often in the case of potential development sites, landowners may try to retain a small strip of land with no rights of access granted over it, so that they can block the access at will – until you pay them sufficient money to persuade them to reconsider, that is.

About Elizabeth

Despite being one who feels the cold,

Elizabeth braved a move to Northumberland and has worked there as a

solicitor with the firm of Dickinson Dees LLP,

in the Agriculture, Farms and Estates Team, where she started life as a

trainee in 2003. As part of this specialist and nationally renowned

team, she works both for a number of larger estates and trusts on an

ongoing basis and also on one-off matters, covering the range of rural

property law, including; sales and purchases, sporting rights,rights of

way, easements and tenancies, to name a few. Outside the office, she

nearly managed to get sent to the North Pole, loves the occasional hunt

with the CVNNH and continues to try and break the 4-hour mark for a

marathon. She lives with her husband, a terrier and a very silly basset.

She can be contacted through Dickinson Dees on 0191 279 9000