Buying a property? Check you have rights of access

Most properties front directly onto the public highway and access to them is straightforward. But what if the house you’re thinking of buying doesn’t have such easy access? How will you get to your front door?

Is your dream home “landlocked”?

A property cannot be deemed good and marketable if there is no legal access, so if the access is in dispute (for example you need to cross someone else’s path or driveway to reach your home and they’re not happy about it), the property could be seen as ‘landlocked’ and not mortgageable.

Easements and rights of way

An easement is a right of access to a property across another property’s land.

For example, if a row of cottages has only one path to the lane, all residents will need to use the path even if it means crossing the gardens of the adjoining houses.  The easement is a private right of way and only applies to those with a legitimate purpose for using it – the owner and family living there, any staff who work there and people visiting for social, business or duty reasons.

There are four main types of easement: expressed, implied, necessity and prescriptive:

Expressed easements

An expressed easement is a right created by deed when a landowner sells part of the land but reserves a right of way for his own benefit or grants one for a new owner

Implied easements and easements of necessity

Implied easements are created by the Courts by looking at how the property is being used and what the intention of the original parties was. This might occur where a property has been built within the former grounds of a neighbouring house but the vendor overlooked the need to create a formal right of way for himself on the deeds, but uses a path across the grounds. It is important to establish that this implied easement is restricted to access on foot, otherwise the neighbour may later claim a right to drive across the land.

Sometimes the only access to a property is by a path or road that crosses a parcel of land owned by another party and is termed an easement of necessity.

Prescriptive easements

A prescriptive easement can be established when a property owner is able to prove a continuous use of an access route for more than 20 years. However, the use needs to have been carried out openly but without the owner’s consent and if the right of way is challenged by the owner within the 20-year period, the prescriptive right will cease.

Since it is unlikely that anything regarding a prescriptive easement will be documented in the deeds a potential buyer should ask the vendor to provide evidence that demonstrates the access has been in continuous use without interruption for 20 years or more as a right of way, and to swear a statutory declaration to that effect.

This right may then be added to the deeds and registered with the Land Registry.

What about removing easements?

Once established, easements are very difficult to remove and must be passed on each time land is transferred to a new owner.

It is better to regard easements as permanent, and consider how you might feel about the next-door neighbours walking past your windows on a daily basis before you make an offer on a property with a right of way across your front garden.