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LondonlawyerJ
LondonlawyerJ, Solicitor
Category: Property Law
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Experience:  Experienced solicitor
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A bit of a tricky question regarding rights of way/easements

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A bit of a tricky question regarding rights of way/easements and prescriptive rights for you.
I have been given advice by my solicitor, but, and this is a very big BUT, the Dept for Transport, information on line re legislation around rights of way and prescriptive rights and another solicitor have all said something different, so would welcome your thoughts ... here goes, I will outline the background and then ask the specific query ...
I am due to purchase a piece of land from the DfT this week. Across this land a private individual built a road 12 1/2 years ago which my neighbour and myself use to get to our two properties, but the road was built without the knowledge or permission of the landowner (the DfT) and they were not aware of the road, or that we have been using it for 12+ years as an access route, ... until I approached them with regard to buying the road and the land on either side of it.
My neighbour (fabulously wealthy and on the ***** *****st) insists they have a right of way, the DfT say no rights of way have been given and that prescriptive rights don't apply unless the road has been used for 20 years and with the knowledge of the landowner. Another solicitor has also said this and from what I can see of the legislation on line I can see that the law supports the 20 years issue and should be 20 years to include landowners knowledge or consent.
However, my solicitor says that the above is all correct with regards ***** ***** position if wishing to register a right of way, or easement, with the land registry. However, if the road has been used as an access for more than 12 years (with or without the landowners knowledge) then we both have the right to continue to use the road unchallenged and then in another 7 1/2 years it can become a registered right ... Is this correct?
NB I am paying a huge premium on the land deal in relation to it's actual land value, in respect of the rights of way to my property ... (and also seek to ask my wealthy neighbours to contribute towards this cost, if they wish to continue to use this route to their gates), so ... who is right and who is wrong has very big implications financially for me and potentially logistically for my neighbours.
I look forward to your view/enlightenment.
Many thanks
Shannon
Submitted: 2 years ago.
Category: Property Law
Expert:  LondonlawyerJ replied 2 years ago.
LondonlawyerJ :

Hello I am a solicitor with over 15 years experience. I will try to help you with this.

LondonlawyerJ :

The prescription period for easements is 20 years continuous (or only short explainable gaps) use. The knowledge or lack of knowledge of the owner of the burdened land is neither here nor there. The right your solicitor refers to is one that is not clear to me. I am away from my text books on this subject this morning but will have a look this afternoon and give you a fuller answer then.

Customer:

Many thanks - will look forward to hearing from you

Customer:

I have received hourly requests to rate your service, but cannot do so until I hear back from you re my query, as previously advised, so hope you understand why my rating has been withheld and that this 'auto-feedback' request can only be actioned when you get back to me ... without delay then I promise! :-)

LondonlawyerJ :

Yes I quite understand. i didn't know that you got an hourly request to rate.

LondonlawyerJ :

I have had another look at this and there is no doubt about it, the period for acquiring easements starts at 20 years, I have no idea where your solicitor gets the idea that 7.5 years has any significance. Whether you are relying on the Prescription Act 1832 or under the common law the period is 20 years. You would therefore be in a position to charge your wealthy neighbour access fees. This is a statement of the general law it may be that you should ask your solicitor if there is some exception to the general law (I can't imagine what that might be but I guess there could be some provision in an earlier conveyance or something).

LondonlawyerJ :

I hope this is helpful.

Customer:

7 1/2 years is when she was saying they would qualify under the 20 prescription rule, but because it is over 12 (12 1/2 in fact) that they have the right to continue to use it i.e. without it being a registered right. I guess you are saying that this is not the case as far as you know and that I should ask her for the legal reference/act she is deducing this advice from etc.

Customer:

Many thanks

LondonlawyerJ :

that is right.

LondonlawyerJ, Solicitor
Category: Property Law
Satisfied Customers: 780
Experience: Experienced solicitor
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