Access Rights When Buying Property
07 January 2020
When buying a property your Conveyancer will check the legal title to determine if it is ‘good and marketable.’ These checks will include whether the property has sufficient access, and has a right of way that enables access to and from the property.
A public adopted road is a road that’s maintained at public expense. If the property borders a public adopted road it will have a right over the road and therefore access is not a specific requirement in the legal registered title. The local property search result will report if the road is adopted or not, and your Conveyancer will confirm the position prior to exchange of contracts.
If the property does not have legal access then it will be landlocked and will not deemed ‘good and marketable’. If you intend to buy the property with a mortgage, your Conveyancer will be under a duty to report this matter to your lender who may then withdraw your mortgage offer.
Rights of way
Alternatively there may be a right of way attached to the property, meaning you are allowed to cross another person’s property to access your own. A right of way is also referred as to an easement. There are three main ways in which an easement can be created:
- Expressed – the right will be created by Deed. An example of an expressed grant is when a landowner sells part of their land but wishes to reserve a right of way for his benefit or grant a right of way for the new owner of the land.
- Implied – the right can only be created on sale of part of your property and the rules are more extensive.
- Prescription – a legal Easement may be presumed if a claimant can show a long and continuous use of the area. The period of uninterrupted use must be 20 years. Where the land is unregistered the legal right created by ‘prescription’ is legally binding.
Checking access rights when buying a property
Your Conveyancer will investigate access to the property as part of the title investigation once they have received the contract pack from the seller’s Conveyancer.
Your Conveyancer will undertake an Index Map search which will reveal if the area is registered or not. If the access is registered the seller’s Solicitors should then make contact with the owner to formalise the positon as part of the pre-contract enquiries. As part of the same enquiries, the Conveyancer will also check the Title Deeds and the Property Information Form supplied by the seller.
There may be reference to a right of access in older deeds or recited in documents. If so, the registered title to the property may need to be amended to recite the access over a private road.
Your Conveyancer will ask for Statutory Declarations and a Statement of Truth from the current owner to support any change at the Land Registry. The Declaration will confirm the length of ownership of the property, how long the access has been used and whether there have been any issues in relation to the access. It will also help if neighbours can also provide Statutory Declarations or Statements of Truth to support the application of access.
The seller may have indemnity insurance in place which was purchased when they bought the property. Your Conveyancer will review the requirements of the policy and determine if it’s acceptable.
Your Conveyancer may still be required to report the matter to your lender, however with sufficient evidence showing the access has been used for a length of time the lender will take a view on the matter. The lender may insist on indemnity insurance which your Conveyancer will advise you about if required. It is usual practice that any indemnity insurance will be negotiated as part of the pre-contract enquiries and usually paid for by the seller. Your Conveyancer will ensure when you later sell the property that the insurance will cover ‘Successors in Title’, which will be your buyer.
Before you exchange contracts your Conveyancer will provide you with a complete overview of the property, ownership and rights affecting the property. If you are purchasing with a mortgage they will also ensure all mortgage conditions have been complied with before your deposit is requested and the exchange of contracts takes place. When contracts are exchanged, you are legally bound to the transaction.