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Ask James Mather Your Own Question
James Mather
James Mather,
Category: Property Law
Satisfied Customers: 22629
Experience:  Senior Partner at Berkson Wallace
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I have owned my house since 1991 and have gained access from

Customer Question

I have owned my house since 1991 and have gained access from a road to the rear for all that time. the road was not there when my house was built in 1923. the road belonged to a property developer untill 1987 when he went into liquidation and his property was passed to the Treasury in lieu of debt. the land was bought fron the treasury by a tennants association. they now want to sell me the right of access. Is it already mine by continued use for 21 years of unchallenged use.
Submitted: 5 years ago.
Category: Property Law
Expert:  James Mather replied 5 years ago.
Do your deeds give you right of access?
Customer: replied 5 years ago.

no my deads cannot give me rights as the road did not exist when they were written.

Customer: replied 5 years ago.

no the road in question did not exist when the deads were written

Expert:  James Mather replied 5 years ago.

So the tenants association want to sell you the right of way. When did the tenants association buy the land from the Treasury?

How much are they asking for?

Have you ever had consent to use it or have you just done it, regardless ?

I am off-line now until tomorrow but will pick this up then

Customer: replied 5 years ago.

the tenants association completed the purchase in 2012.


I have just used it as there was never a question of needing permission.( the road is a public highway and all persons using the road had access to all the properties and have done since before the road was built) and when in liquidation there was never any body to ask. when I attempted to buy the land at the rear in 1993 there was no mention of access from the treasury solicitor.

merry christmas.

there is no price as yet they are engageing a surveyor to value access rights and parking strip.

Expert:  James Mather replied 5 years ago.

In normal circumstances if you had used the land for 20 years plus,
nec vi, nec clam, nec precario (not in secret without consent and without
permission) you would acquire the right to do that by prescription.

The same applies to adverse possession but for adverse possession you
don't have to just use it, but treated as your own and be able to exclude
others ( which is not the case here) for 10 years. So we are faced with a
prescriptive easement.

However, the land was owned by the Crown until 2012, and you
cannot acquire a prescriptive easement over Crown property, nor can you
adversely possess it, because walking on or occupying Crown property is
trespass in all cases and you cannot acquire any rights through performing an
illegal act nor, will courts enforce an illegal act. On these circumstances,
therefore I'm sorry to have to tell you that it does not matter how long you have
used the land if your use was against the Crown.

I'm of the opinion therefore that you are faced with biting the
bullet and buying the right of way.

I'm sorry, I appreciate that this is not the answer you wanted,
but there is no point in me misleading you.

I help further?

bear with me today because I will be online and off-line. You may have noticed
on the news that it is Christmas Eve!

don't forget to positively rate my

answer service (even if it was not what you wanted to hear) and I will follow

up any further points you raise for free. If you don't rate it positively, then

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before rating me negatively otherwise I don't get paid at all for my time and


The thread remains open. Thanks

Customer: replied 5 years ago.

your answer is possibly corect . But i have one query as two of my neighbours claimed areas of the land in question by adverse possesion about 5 years ago through the land registery. I was aware of this As I received a letter from the land registry about both aplications and objected to part of one of the aplications and my objection was upheld. could this affect my argument? Does this meen that land held by the treasury is not actualy crown land.?

I will give you a good report when needed.

Expert:  James Mather replied 5 years ago.

You can find out who the HA bought the land from by getting a copy of the transfer from the Land Registry.

You will need to do search of index map on form SIM with large scale OS plan, to get a title number. Then get the official copies of the title and then get the transfer referred to in the deeds.

Time only starts to run once the Treasury solicitor sold it.

If you Google Bona Vacantia that is the rule under which the Crown owned the land.

There could have been 20 years before the Crown took possession because use of previous owners is takn into account. Then you can have the easement.