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Right of access and land movement.

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  • Right of access and land movement.


    A friend owns part of an old mansion on an active landslip which was divided into three maisonettes in the 70s. The drive goes behind the first two maisonettes before arriving at the garage of my friend's, and is apparently owned by the central property.

    Now, in 2001 there was major ground movement which took out the main road which serves the drive, including the point of access. The main road was rerouted, and the access was reinstated just a few metres further up. The owners of the drive continued to let my friend use the drive and built themselves a shed in front of the old access. However, now my friend wishes to sell the property, the owners of the access are saying that they will not let the new owners use the new access point, unless access is purchased for an extortionate sum. I have not yet seen how the access is defined on the deeds.

    My understanding would be that generally, whilst the old access has been severely damaged, the beneficiaries of the right of way (my friend) would have the right to reinstate it along the old route, at their own expense. Clearly the shed would have to be removed. I imagine that, if this can be proved, the owner of the right of way would rather concede access through the new gate! But does that sound like a fair assumption of rights?

    The other possibility is that the exact route of access isn't defined in the deeds, in which case I'm not clear what the outcome would be.

    Thanks so much for any insight!

    Tags: None

  • #2

    Your friend's proprietorship file at Land Registry should contain details about his right of access and the route
    Cost 3 here: https://www.gov.uk/search-property-i...-land-registry


    • #3
      Ah, thanks. I have purchased deeds from the Land Registry before, but didn't realise that they include this kind of info. I have asked my friend to see a copy of their full deeds and am awaiting response. I may purchase the neighbours' from the Land Registry too in that case. Whilst the middle property appears to own the current access point from the road, I am now sure which one owns the original access point. Would you recommend I buy the Title Deed, the Title Plan or both for each property?


      • #4
        The cost is so minimal I always think it is worth buying the lot in the one visit


        • #5
          Ok, so I'm going to refer to the three properties as "W" (west) "C" (central) and "E" (east - my friend's). Access is a drive from the west running along the northern boundary of the building, culminating in a dead end at E's garage.

          Whilst all properties are listed on the Land Registry, documents are only available for W and E. However, I have established that the owner of C is also the owner of W, though he suggested otherwise when I met him on site during a visit. W's title plan clearly illustrates that the access, including both original and new access points, is within its boundary. I believe the owner has been trying to sell W for some time, but intended to redefine the boundary to retain ownership of the drive, as I have found several sales listings for W, including one stating that the access was owned by C.

          Here is a redacted copy of the access clause in W's Title Register:

          The land is subject to the following rights reserved by a Conveyance of the land in this title dated xxx 1956 made between (1) xxx (Vendor) and (2) xxx (Purchaser):- "RESERVING nevertheless unto the owner or owners for the time being of the premises known as "E" and to the owner or owners for the time being of the premises known as "C" in common with the Purchaser and her successors in title (a) Full right and liberty at all times by day or by night to pass and repass over and along that portion of the land hereby conveyed as is coloured Yellow on the said plan either with or without horses carts carriages motor cars vans and usual vehicles for all reasonable purposes in connection with the use and enjoyment of those portions of the adjoining premises known as "E" and "C" as private dwellinghouses only the respective owners of "E" and "C" paying to the Purchaser and her successors in title a fair proportion of the expense of keeping such roadway in proper repair and condition (b) Full free and uninterrupted access and enjoyment of light and air in perpetuity in and through the window or windows or apertures in the said premises known as "E" and "C" which overlook the property hereby conveyed (c) All other easements or quasi-easements (if any) now used in connection with or in common with the adjoining properties known as "E" and "C" and the property hereby conveyed but subject to the rights of the Purchaser arising out of this Conveyance and the said division of the entire property...

          It then goes on to talk about sewers and flying freehold clauses between W and C. However, most frustratingly, there is no area "coloured Yellow" on the attached plan! Is this normal? Where does that leave things!?

          Similarly, E's Title Register talks about an area "coloured Brown and Red", however no such markings exist. Both plans simply show a red border around the respective properties' boundaries.

          Regardless, I think it is clear where the area should be marked - over the old access, not including the new diversion since the landslip. So the original question remains. Would there be any reason not to have a right to reinstate the access along the original route, despite the ground movement and the shed being built on top of it?



          • #6
            So E & C have an easement which gives them the right of access along the defined route.

            That cannot be changed without the agreement of all parties.
            It may not be blocked, nor diverted.

            I suggest E tells the owners of the burdened land that he requires the original access reopened or the easement is varied by agreement at no cost to the benefitting land.
            No need to purchase access rights as they already exist.
            If he doesn't agree E should apply for an injunction at the cost of the other party


            • #7
              Great, thanks. Will be passing this on.

              There is also potentially an access issue with the Council to open. Apparently it was their contractors who reassigned the access after the landslip. I mentioned that it took out the main road and the access to the properties. This left the main road broken, which was diverted around leaving the access at a dead end in the old section. A fence was erected between the old and new access points to block off the road. I presume it is the Council's fence and that they assumed the new access would serve all the properties. But does their own barrier and involvement muddy things?
              Last edited by Rapidon; 5th May 2021, 21:11:PM.


              • #8
                From your posts I am assuming the old access could be used if the council had not erected a fence

                If it is not possible to reinstate the old access because it has physically disappeared in the landslip ,I would expect (if it went to court) the judge would probably order that the easements be altered to reflect that.
                That would seem to be the most appropriate solution anyway, but there is no need for it to be purchased

                Try and avoid court as land disputes can become very expensive


                • #9
                  Thanks. To clarify, the old access couldn't be used as is. The land has physically moved, but not disappeared like off a cliff into the sea. It's just slumped and would need to be built back up to get a car across. I will go down myself to get a full picture of the condition. Do you think the owners need to talk to the Council about it?


                  • #10
                    If the old access, which is covered by the easement< has fallen into a condition which means it can't be used, it needs to be reinstated.
                    The covenant covers this situation " the respective owners of "E" and "C" paying to the Purchaser and her successors in title a fair proportion of the expense of keeping such roadway in proper repair and condition (b)"

                    Certainly the council should be told if they have locked off the only access E & C have legally, and asked to reopen it.

                    However it will all depend on what has actually happened, the ground situation etc.


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