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Remus2004
Remus2004, Barrister
Category: Property Law
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an alley way separating 2 row of houses either side of alley

Resolved Question:

an alley way separating 2 row of houses either side of alley has been used for past 40 years as a entrance to garages and back gardens, it has now been found to be on Title Deeds of properties belonging to one of the roads can they put restrictions on the other properties from using this alley way or by default of time they have lost that right.

Further info: The first housing development was approx 1930's and this had the use of the alley way (not council owned) this separated farm land, this farm land was then developed for housing in 1966 and their gardens ended at the alley way all parties of both developments have since used this alley way. It is this newer development that has the alley way on their title deeds. Garages over the past 40 years have had planning permissions and been built.

Submitted: 2 years ago.
Category: Property Law
Expert:  Remus2004 replied 2 years ago.
Thank you for your question. My name is ***** ***** I will try to help with this.
How can I help with this please?
Customer: replied 2 years ago.

As this Alley Way has been used for more than 45 years by all residents with their cars and delivery vehicles could the residents on one side of the alley stop anyone using this Alley. As no one has complained or tried to stop anyone for that amount of time have they under default lost their right now. It seems strange that garages have been passed for building if there was no access to them.

Expert:  Remus2004 replied 2 years ago.
After 40 years use, the people who have used it for access on foot and vehicles can claim an easement either by Prescription under the Prescription Act or by a legal doctrine of Lost Modern Grant.
The former applies if it has been used without consent or objection are not in secret for more than 20 years and there is proof of that use. The latter applies when it has been used for as long as anyone can remember and it is therefore presumed that because it was used for all that time and no one ever objected, there must have been a deed granting the access but it has been lost.
In circumstances like this, if you are buying a property, you should insist that there is indemnity insurance in respect of a missing easement. It is not for your solicitor to raise that issue, it is for the buyers solicitor (in your case) to raise the issue and for your solicitor to suggest indemnity insurance. Your solicitor should not volunteer it without being asked. The policies are not expensive, perhaps £100 or so.
Can I clarify anything for you?
Jo
Remus2004, Barrister
Category: Property Law
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