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Shared access between two houses
5 Answers
I am selling my terraced house and there is shared access entry between me and neighbour. This is stated as such in the deeds. The buyers solicitor says that the deeds to not give legal title to use the shared access and wants me to
1. Sign a statement to say I have used it for the 12 years I have lived there and
2. pay �200 indemnity insurance incase a dispute arises in the future. My solicitor says this is correct and it is an error on the deeds which is quite commonly seen(!) The property is over 100 years old and there has not been a dispute to my knowledge, during this time. Surely, after 100 years of uninterrupted use, the legal right of access should have been established. Can anyone suggest a course of action that will not require me to pay this insurance? Thanks very much
1. Sign a statement to say I have used it for the 12 years I have lived there and
2. pay �200 indemnity insurance incase a dispute arises in the future. My solicitor says this is correct and it is an error on the deeds which is quite commonly seen(!) The property is over 100 years old and there has not been a dispute to my knowledge, during this time. Surely, after 100 years of uninterrupted use, the legal right of access should have been established. Can anyone suggest a course of action that will not require me to pay this insurance? Thanks very much
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Is this the only access to your property? If so it seems very strange it has not been picked up on before now, when you bought it was it not mentioned then?
Has your solicitor gone through the deeds with you and explained exactly what the issue/error is and why, when you believe there is a right in the deeds that there now appears not to be one eg a personal right granted which has now lapsed or maybe the right being misinterpreted?
I would assume the property is now registered as you acquired the property 12 years ago. It may, if there is a right in the deeds, be worth getting your solicitor to check with the Land Registry about whether or not rights exist.
An indemnity policy will only give an indemnity fund for certain uses such as possibly legal action if there is a problem eg the owner of the land blocking the access or maybe to help negotiate a right (which can be horribly expensive depending on who you're negotiating with).
There will be conditions attached to the policy to satisfy before it is put in place and others to adhere to after eg the indemnity insurers are probably asking for a statutory declaration (a statement sworn before a solicitor - criminal offence to swear a false statement) confirming uninterrupted use without consent, payment, problem etc... to back up your claim.
Other conditions can include that no approaches should be made to any third parties, such s your neighbour or the person who owns the access if different. This is to protect the insurers against a greater likelihood of a claim if other parties are made aware and try to assert rights such as blocking the access. In this case such an approach would be likely to void the policy so be careful who you talk to.
It might also be worth checking whether the proposed policy has been approved by the buyers solicitors and their lenders as, depending on the circumstances, this may cause a snag
Has your solicitor gone through the deeds with you and explained exactly what the issue/error is and why, when you believe there is a right in the deeds that there now appears not to be one eg a personal right granted which has now lapsed or maybe the right being misinterpreted?
I would assume the property is now registered as you acquired the property 12 years ago. It may, if there is a right in the deeds, be worth getting your solicitor to check with the Land Registry about whether or not rights exist.
An indemnity policy will only give an indemnity fund for certain uses such as possibly legal action if there is a problem eg the owner of the land blocking the access or maybe to help negotiate a right (which can be horribly expensive depending on who you're negotiating with).
There will be conditions attached to the policy to satisfy before it is put in place and others to adhere to after eg the indemnity insurers are probably asking for a statutory declaration (a statement sworn before a solicitor - criminal offence to swear a false statement) confirming uninterrupted use without consent, payment, problem etc... to back up your claim.
Other conditions can include that no approaches should be made to any third parties, such s your neighbour or the person who owns the access if different. This is to protect the insurers against a greater likelihood of a claim if other parties are made aware and try to assert rights such as blocking the access. In this case such an approach would be likely to void the policy so be careful who you talk to.
It might also be worth checking whether the proposed policy has been approved by the buyers solicitors and their lenders as, depending on the circumstances, this may cause a snag
especially if it is the only/main access.
Certain rights can be acquired by what is called prescription but it would need proof for a longer period than your occupancy eg stat decs from former owners to make up the 20 odd year period required. This could also delay the sale significantly.
If there is a significant defect, ie no crucial right of way then an indemnity policy, if accepted by the seller's legal advisors may be a quick way out of it for you.
Once sold it is, providing everything was done as it should be, then the seller's problem.
If you give me some more details I may be able to help more.
Certain rights can be acquired by what is called prescription but it would need proof for a longer period than your occupancy eg stat decs from former owners to make up the 20 odd year period required. This could also delay the sale significantly.
If there is a significant defect, ie no crucial right of way then an indemnity policy, if accepted by the seller's legal advisors may be a quick way out of it for you.
Once sold it is, providing everything was done as it should be, then the seller's problem.
If you give me some more details I may be able to help more.
Thanks very much for explaining this. The deeds actually state 'shared access'. The words the solicitor used were ' no legal right of way' I guess I am somewhat confused by the terminology as it seems the same to a non legal person.
It is the only way to gain access to the the rear of the property without walking through the house. There is a gate which I maintained until recently and this has recently been replaced by the guy next door, we share this. At the top of the entry are two more gates, one into my back yard and one into his. Our water drain runs underneath the entry to the street.
I will pay for this indemnity policy but it seems a bit strange that this is the way it is after all this time. May be I am too trusting and accepting of the situation and the solictior sees the potential for something to go wrong in the future.
Thank you again
It is the only way to gain access to the the rear of the property without walking through the house. There is a gate which I maintained until recently and this has recently been replaced by the guy next door, we share this. At the top of the entry are two more gates, one into my back yard and one into his. Our water drain runs underneath the entry to the street.
I will pay for this indemnity policy but it seems a bit strange that this is the way it is after all this time. May be I am too trusting and accepting of the situation and the solictior sees the potential for something to go wrong in the future.
Thank you again
Just to add to Jenna's advice (good stuff). The statement will be a Statutory Declaration which would 'count' towards the minimum 20 years required by the new owner to claim a legal right of access under the Prescription Act 1832. Presumably the buyer's solicitor doesn't reckon you would able to find the previous owner from 12 years ago to seek a Statutory Declaration going back before your purchase - and anyway signing one now that period may not be legally-binding. That's why you are being asked also to provide the indemnity.
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