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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8972
Experience:  I have been practising for 30 years.
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We own an orchard which abuts a private road which has a number

Resolved Question:

We own an orchard which abuts a private road which has a number of residential properties on it. As far as we can tell, despite the owners of these properties believing they have a vehicular right of way over the access road, this is not mentioned in their title deeds. The ownership of the road is not clear, as it rests with the original developer who has since died. We have approached our neighbour to either purchase a strip of his garden or buy a right of way over his land, for us to achieve access to the road from our orchard so that we can develop. This strip would give us physical access to the private road, but can you tell us whether this would mean we could use the access or achieve a right of way in our own right?
Submitted: 2 years ago.
Category: Law
Expert:  F E Smith replied 2 years ago.

How long have the owners of the property used the right-of-way for?

Have you done a land registry search to establish who owns it if it is registered at the land registry?

Is it the private road that you want to buy a strip of or a piece of some of the land?

How large is the strip that you would be looking to buy?

Are you thinking that if this person's property has the right of way, if you divide a small piece off it, which is adjacent to your land, you gain that right-of-way by virtue of your ownership of the small piece.

Is the small piece enough to give you access on its own.

How large is the piece?

Customer: replied 2 years ago.

The 6 houses using the access road have been built for 35 years, all of which time they have had constant access.

I have not yet done a search for title to the road, but I doubt it will be registered, as the estate on that road is 35 years old, ie before registration came into effect I think.

the land we wish to buy is a strip of land owned by our neighbour, the freehold owner of one of the houses on the road. This strip, which consists of part of his front garden would give us direct access to the private road.

The strip of land is perhaps 4 mtrs wide, and 10 mtrs long.

Yes, we are thinking that either purchase of the strip for vehicular access, or purchase of a right of way over the strip, would give us right of way onto the road.

Expert:  F E Smith replied 2 years ago.

It is worth checking the land registry because the land registration act started in 1925 and registration has been compulsory for almost 20 years.

Send form SIM off to the land registry along with a plan of the area marked in red and they will tell you whether this is registered or not. You will need an ordnance survey-based plan as Google maps is not sufficient.

Any title plan from any of the adjoining houses would be sufficient to mark up the area and you can get one from the land Registry website which is here. A plan costs £3

https://eservices.landregistry.gov.uk/www/wps/portal/!ut/p/b1/04_SjzS0tDQwMTIxMjLXj9CPykssy0xPLMnMz0vMAfGjzOKNjSxMDA1NjDwsjM3MDTxN3dyNDUNMjQ1MjPWDU_P0c6McFQH3SLFU/a

If a property has the benefit of an easement over another piece of land and the property is then divided into two each piece then has the benefit of the easement.

In this case however there is no documented easement and it would therefore become an easement by prescription which would need to be documented with an application to the land registry by the land owner and I would suggest that is done before you bought the strip.

Can I help you with anything else today?

Customer: replied 2 years ago.

Thanks for this. However, I was given to understand that the right of way pertaining to a property does not give the right to another property going through it to gain a right of way. Put another way, the original right of way would be restricted to the same area of land, and not extend to land adjacent to it? How does the land owner come into play if this one property owner can split his land to provide us with one? Also, what rights would the other road users have to object to another development using the road?

Expert:  F E Smith replied 2 years ago.

If a large property has the benefit of a right-of-way and the large property is then subdivided each of the small properties gains the right of way because it is impossible to decide which of the smaller properties would benefit.

However it only gives the right of way to access the subdivided piece. From a practical point of view, it would be a nonsense for you to access over the right of way to the subdivided piece of land and them be prohibited from going from the subdivided piece of land onto your own land.

What you would not get is the benefit of being able to go past the subdivided piece of land onto your own land if that is what you need to do.

If however the right-of-way gives you access to the subdivision and then you have access over the subdivision and into your land, that would work

Customer: replied 2 years ago.

Many thanks again, but I am still confused as to why we need to check who owns the road with the land registry, as, if as you say, the easement will follow the purchase of a piece of our neighbour's land, then from what I have understood, we will have the right to use the road with or without the owner of the road even knowing about the development? Is this right - ie why do you recommend finding out who actually owns the road? Also, you do not mention anything about the other property owners who have access across the road. Do they have any rights to object or to block such a move to purchase the right of way?

Expert:  F E Smith replied 2 years ago.

You don't actually need to know who the owner is what you need to know if its registered because when you apply to register the easement, if it is registered, the owner will get notice and you are better off being prepared for that to counter it.

You don't actually need to know who the person is but it is as well to know if it is registered or not and bearing in mind that a search of the index map is free and the deeds only cost £3, at least you are prepared for the eventuality that an owner does come out of the woodwork

Customer: replied 2 years ago.

Thank you.

I do not mean to be a nuisance, but am I right in also thinking that the other people who have a right of way have no say in the matter either?

Expert:  F E Smith replied 2 years ago.

There is no problem following this up at all. It is not a nuisance.


You are quite correct that the other people who have the right of way have no say.

They are not property owners, they simply have the benefit of the right of way and even if the owner decided to grant several other rights of way over the land, they can do nothing about it.

It is in fact to their advantage because there is a legal doctrine of mutual benefit and burden whereby anyone who uses something and has the benefit of using it also has the burden of repairing it. In practice, if it is a Priory Road it means that everybody who uses it shares the maintenance of it in proportion to their use.

So it reduces the burden on each of them slightly to have another user.

Customer: replied 2 years ago.

Thank you so much. I think I have all the answers I need now to proceed. This is an excellent service, which I shall recommend to my friends.

Expert:  F E Smith replied 2 years ago.
You're very welcome.
F E Smith, Advocate
Category: Law
Satisfied Customers: 8972
Experience: I have been practising for 30 years.
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Customer: replied 2 years ago.

Thank you for your previous advice on this, which was very useful. We are now ready to proceed with the land swap, but our own lawyer is very concerned about the easement not giving us the absolute right of way that he thinks is necessary. (ie he says that we will still be unable to go from our old land where the development is going to take place, onto the new strip of land which has the access.) You did explain that this is technically the case, but suggested that in practice it is a nonsensical situation for us not to be able to travel from one piece of our own land to another piece of our own land, and that in any case, no-one could object or stop us. He tells us that if an owner were to appear (ie the owner of the private road) he could stop us using the access.

Is this correct, and if so, can you recommend a lawyer in the Trowbridge/Bath/Chippenham area who would have a more sympathetic approach to our case?

Customer: replied 2 years ago.
Relist: Other.
I have not had an answer at all, so I would like someone else to provide this asap, as I have been waiting for over 2 days now.
Expert:  wingrovebuyer replied 2 years ago.
Hello. I'll pick this up. I'm afraid I partially disagree with FE Smith's previous answer. I think your solicitor is correct to be cautious, because apparently nobody has a documented right of access over the road and so what rights your land and the land you are buying has is unknown. In the absence of a deed of easement, you could rely on long use (ie FE Smith did raise this above) but easements arising by long use are restricted to the continued use of the land obtaining the right. For example, you could get a right of access to a field after long use of a track, but that right would not benefit the field if you got permission to build houses on it. Easements cannot generally be "extended" in this way. In addition, if land A has a right of access, you can't then use that access right to access land B over land A, because that is intensifying the usage. As FE Smith said, it is a nonsense in practice, but that won't be of comfort to the solicitors acting for plot purchasers. In essence, I think you only have one practical solution - insurance. Your solicitor ought to be able to obtain a policy indemnifying you and any purchasers and their lenders against anyone seeking to prevent your / their use of the track to access the land. Cost depends on the level of cover, and is normally below £1.00 per £1,000 of cover (ie £100,000 cover would cost £100, £5m would cost £5,000). I think this is the best and most cost effective solution. Hope this helps. WB
Customer: replied 2 years ago.

Thank you for the reply, which I understand.


 


However, we do know who the road owner is, and I would like to know whether he could stop us from using the road, and if so, how would he do this, as in practice, if we own the land it will be practically impossible to stop us from coming in and out of it.


 


I am also wary that the Council will not grant us permission to build our new house unless we can prove we have access. Does the Council have the power to refuse on the basis that the access is not technically legal?

Customer: replied 2 years ago.

Hello, and thanks for the first answer. I am still waiting for a response to my supplementary questions, but have also thought of some other points which are


Would it make a difference if the owner of the property we are buying has a 'registered' right of way, and we are not sure that he has not.


and


You talked about buying an indemnity, but what will this insure us against? The owner of the private road is known, so I don't see that we can buy an indemnity against his refusal to give a right of way. It would be much better to simply ask him to grant us one would it not? I would still like to know whether he can actually stop us physically using the road though, as he could want a huge sum of money to grant the access.


Sorry to be a nuisance, but clearly this advice now changes our plans.


 

Customer: replied 2 years ago.

Sorry, but I did pose two supplementary questions following on from your new advice, so I can only rate you when the conversation is finished. I have now received 3 requests for a rating, which I understand will close the question before it is answered fully. Can you let me know if you have received the 2 supplementary qus, and if so, when you will be able to respond?

Customer: replied 2 years ago.

Can I please have a reply to my two supplementary questions. Although being satisfied with the partial answer I got, I cannot rate you higher as you have not finished.

Expert:  wingrovebuyer replied 2 years ago.
Hello. Please note that I do not send the rating emails and have no control over them. I believe they are automated. I am happy to continue.

If you know the owner of the track and he won't grant a full right of way, then I am afraid you won't be able to get the insurance I suggested. I am also sorry, but the owner can stop you using his track and without a fullcand demonstrable access right, you won't be able to sell the plots or development site. This is because, as before, the right appears limited to the present use of the land and can't be extended. This may seem silly, but it is the law. The only way around it is to pay the track owner for a full right of way.

please note that I am a working solicitor and I am not always online, but I will respond to further comments as soon as I can.
Customer: replied 2 years ago.

Thank you for this. It is not the answer I wanted, but we accept it is the law, so will now try to work with this.


Also sorry to complain about the e mails. I did not understand that these were not generated by you, as I got one every hour.


The only issue you did not mention is whether it makes a difference if our neighbour has a registered right of way, although it seems that this will make no difference.


 


Many thanks again, and my apologies for the misunderstandings.


 

Expert:  wingrovebuyer replied 2 years ago.
No problem, I'm just sorry it's not more positive news. If your neighbour has registered a right of way, again that will be limited to the current use, and will not be extendable, so I am afraid I doubt it will help. As regards the emails, that's no problem - I wasn't aware JA sent them but I will email customer service and ask them if this is normal, as it must be rather irritating! Anyway, best of luck. At the risk of repeating me of those emails, please don't forget to leave a rating. WB
Customer: replied 2 years ago.

No problem. Thank you.

Expert:  wingrovebuyer replied 2 years ago.
Thank you.
Expert:  wingrovebuyer replied 2 years ago.
Hello. Sorry to bother you but my system isn't showing a rating. Thanks. Wb
Customer: replied 2 years ago.

I have actually done it twice, but the system seems to leave much to be desired.

Expert:  wingrovebuyer replied 2 years ago.
Agreed! Thanks, WB.

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