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Hi all,
I'm new here but hoping for some advice. TiA.
We bought a house 4 weeks ago. The estate agent told us that there was a right of way over the rear garden and the driveway in favour of the house next door (a terrace, ours is the end terrace).
However, our solicitor advised us that no legal right exists. There are no rights granted or reseved on either our title or that of the neighbour.
Both houses have for the last 25 years or so been in the ownership of a property company who rented them out.
We didn't challenge the lack or right of way legally during our buying process as whilst we would have accepted the right, it's of course preferable not to have the land burdened in this way.
The house next door has also now been sold and the lack of easement has been flagged. The lack of access is something of an issue for them as it means they have no right to cross our garden for the purpose of filling their oil tank, and they can only access the property from a pedestrian gate straight to the road, rather than walking and driving over our driveway to get to theirs.
We had considered that when this issue raised its head, we would negotiate with the sellers in terms of what rights we would be comfortable to allow (for example the right to fill their oil tank but not an access at all times and for all purposes over the back garden).
However the sellers are I think perhaps a bit "bully boyish" and have threatened that they will just apply for prescriptive rights.
My understanding is that they don't have the rigjt to do this, largely because as the owners of both the dominant and servient land, they could never have lawfully granted the right of way to themselves in the first place and so it therefore fails that test (as per Land Registry PG 52). They have also not occupied the property themselves so presumably would be reliant on tenants to swear the declaration(s). Again, whilst I understand from PG52 that a tenant can acquire an easement on behalf of a freeholder landlord, this doesn't apply when the easement is being exercised over land also owned by the same freeholder landlord.
If I'm correct and these tests are failed, then I don't see how they can even make the application or that it would be accepted by the Land Registry.
We are still willing to come to some sort of agreement, as we don't want confrontation and stress where it can be avoided, but I would like to know if my thoughts on the prescriptive aspect are correct.
Many thanks
L
I'm new here but hoping for some advice. TiA.
We bought a house 4 weeks ago. The estate agent told us that there was a right of way over the rear garden and the driveway in favour of the house next door (a terrace, ours is the end terrace).
However, our solicitor advised us that no legal right exists. There are no rights granted or reseved on either our title or that of the neighbour.
Both houses have for the last 25 years or so been in the ownership of a property company who rented them out.
We didn't challenge the lack or right of way legally during our buying process as whilst we would have accepted the right, it's of course preferable not to have the land burdened in this way.
The house next door has also now been sold and the lack of easement has been flagged. The lack of access is something of an issue for them as it means they have no right to cross our garden for the purpose of filling their oil tank, and they can only access the property from a pedestrian gate straight to the road, rather than walking and driving over our driveway to get to theirs.
We had considered that when this issue raised its head, we would negotiate with the sellers in terms of what rights we would be comfortable to allow (for example the right to fill their oil tank but not an access at all times and for all purposes over the back garden).
However the sellers are I think perhaps a bit "bully boyish" and have threatened that they will just apply for prescriptive rights.
My understanding is that they don't have the rigjt to do this, largely because as the owners of both the dominant and servient land, they could never have lawfully granted the right of way to themselves in the first place and so it therefore fails that test (as per Land Registry PG 52). They have also not occupied the property themselves so presumably would be reliant on tenants to swear the declaration(s). Again, whilst I understand from PG52 that a tenant can acquire an easement on behalf of a freeholder landlord, this doesn't apply when the easement is being exercised over land also owned by the same freeholder landlord.
If I'm correct and these tests are failed, then I don't see how they can even make the application or that it would be accepted by the Land Registry.
We are still willing to come to some sort of agreement, as we don't want confrontation and stress where it can be avoided, but I would like to know if my thoughts on the prescriptive aspect are correct.
Many thanks
L
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