Right of access or ownership?

Right of access or ownership?

“We have had a surprising number of cases recently where it has come to light that the extent of our clients’ registered legal title does not include all or part of the access that serves their property”, says Mark Sanders of Acorn Rural Property Consultants.

“For most of the time it makes no difference whether or not the drive leading from the public highway to the property is part of the registered title or not. That is because, where it is owned by a third party, the property will either have been granted a legal right of way over it or it will have been used for a sufficiently long period of time for a legal right to use it to have become established”, explains Sanders.

“The cases we have seen are different in that there is an ownership gap between the public highway and the property but no known third-party owner and no other party who could logically be the owner. In many of these the issue was identified by our clients’ solicitors when they purchased the property and addressed by obtaining a statutory declaration from the vendor to record the fact that missing land had been used as an access for many years and an insurance policy to cover any loss in value and related expenses if the right to continue to use the access is ever challenged in the future”, continues Sanders.

“Although that approach deals with the rights to continue to use the access, it does not address the underlying issue that the access is not part of the legal title of the property. That can have wider ramifications, for example, where a planning application is being made and it is necessary to confirm whether all the property included in the application is owned by the applicant”, adds Sanders.

Sanders says that an alternative approach in such cases is for purchasers and their solicitors to establish if the vendor has obtained what is known as adverse possession of the land in question. He advises that there are established legal tests that apply to a claim for adverse possession and that, if they are met and a successful application can be made to the Land Registry, the missing land will then become part of the registered title and the potential issues will have been resolved once and for all.

For further information on any rural property or valuation matters please contact Mark Sanders on 01884 212380 or at marksanders@acornrpc.co.uk

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