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UKSolicitorJA
UKSolicitorJA, Solicitor
Category: Law
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Experience:  English solicitor with over 12 years experience
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I am a solicitor and acted for a client last year in the purchase

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I am a solicitor and acted for a client last year in the purchase of a parcel of woodland.
The parcel has no direct access from the public highway but a conveyance of 1960 under which it was then purchased expressed a right "for the Purchasers their tenants and servants at all times with or without horses and other animals carts and other vehicles to go pass and repass along and over the north eastern corner of the enclosure numbered 362 on the plan annexed hereto and from the high road adjoining such enclosure...."
I had the vendor last year make a stat dec on which he coloured the accessway green on a plan. The client agreed the colouring. The vendor also stated that he had exercised the right of way since his purchase of the parcel in 1988.
The new owner of the land over which the right of way is claimed is arguing that the right granted in the 1960 Conveyance was personal to the then purchasers and that my client has no right at all. My view is that a right granted to a purchaser in a Conveyance is always a right in rem unless specific words of limitation are used such as "the purchasers only" or "such right to be limited to the purchasers named herein". Am I correct, please?
There are other clauses in the conveyance which create rights elsewhere and which begin "a full and free right...." and "a right of way....". There is no mention of "the Purchasers" in these clauses and I believe that this is where the new owner is placing his argument.
In the event that I am not correct, I would seek to claim a right by prescription as the vendor says he exercised the right of way for 25 years prior to his purchase.
Please let me have your views.
Regards.
Adrian Vidgen
Submitted: 2 years ago.
Category: Law
Expert:  UKSolicitorJA replied 2 years ago.
Hello Adrian,
I would agree with you that the new owner is bound by the right of way which your client acquired when your client purchased the woodland from the vendor. If the right of way had been reserved in the manner you have described e.g. The right of way was limited only to the named purchaser or there was wording to the effect that the right of way was not capable of being conveyed to subsequent purchasers, then the reservation would have meant that your client did not acquire the right of way.
There is a good article on the above issue here, which I am not sure whether you have already seen:
http://www.nsbs.org/archives/CLESNS/488.pdf
If the vendor was not party to the 1960 conveyance, then yes, the easement by prescription argument is quite valid although in your case, your client will not be the claimant as he or she has not been the long user but the vendor, so you need to ensure that your client acquired the right from the vendor.
I hope this helps
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