Fact 27. Access Rights and Rights of Way - how do they affect property?

Access rights and rights of way affect property by influencing legal access, marketability, mortgage approval, and can lead to disputes or restrictions on land use.

Access Rights and Rights of Way - how do they affect property?

Access rights and rights of way significantly impact property ownership, sale, and use. They determine who can legally cross or use someone else’s land and under what conditions. Understanding these rights is essential for property buyers and sellers, as they influence legal access to a property, affect marketability, mortgage approval, and can lead to disputes or restrictions on land use.

What are Access Rights and Rights of Way?

Access rights are legal permissions allowing individuals or entities to enter or pass through property they do not own. Rights of way are a type of access right specifically granting passage across a route on someone else’s land to reach another destination, such as a home or a public road. These rights can be for pedestrians, vehicles, or both.

Types of Rights of Way and Easements

- Public rights of way: Paths or roads over private land open for public use, commonly found in rural or semi-rural areas.

- Private rights of way: Granted to specific individuals or properties, often documented in property deeds or agreements.

- Easements: Broader access rights including utilities, drainage, or the right to light and air.

How Are Rights of Way Created?

- Express grant: A formal written agreement recorded in the property deeds.

- Implied easement: Arises due to necessity, for example where no other access is possible.

- Prescription: Established through long-term use (usually 20 years) without permission but without objection.

Impact on Property Transactions

Access rights and rights of way can influence property sales and purchases in several ways:

- Legal Access: Properties without lawful access may be unsellable or harder to value. Conveyancers must confirm access routes during the buying process.

- Marketability: Properties with problematic or disputed access rights may be less attractive to buyers.

- Mortgage Approval: Lenders often require evidence of legal access before granting mortgages.

- Disputes and Restrictions: Unclear or contested rights of way can lead to neighbor disputes, legal battles, and restrictions on how land can be used.

Checking and Verifying Rights of Way

- Review Title Deeds: Existing rights of way or easements are typically detailed in the property’s title documents.

- Consult Land Registry: Regulated rights will be recorded with the Land Registry.

- Local Searches: Conveyancers conduct searches to uncover any access issues affecting the property.

- Surveyors’ Reports: Physical inspections may identify paths, gates, or long-used tracks indicating rights of way.

- Legal Advice: Specialized conveyancing solicitors can clarify complex access rights or negotiate solutions.

Potential Issues from Access Rights

- Maintenance Responsibilities: Access agreements often include obligations to maintain the pathway or road, which can lead to disputes.

- Excessive Use: Rights can be misused or abused, causing nuisance or damage.

- Changes or Removal: Altering or extinguishing established rights of way requires formal legal consent, often a complex process.

- Boundary Disputes: Rights of way often intersect with boundary issues, potentially complicating property ownership.

Resolving Access Disputes

When disputes arise over access or rights of way, several options may be pursued:

- Negotiation and Mediation: Parties may reach voluntary agreements on usage and maintenance.

- Legal Action: Court orders can define, enforce, or restrict access rights.

- Registration of Rights: Formalizing longstanding rights through Land Registry can clarify legal status.

- Compensation: Agreements may include payment if rights are restricted or extinguished.

Tips for Buyers and Sellers

- Buyers should always check for any existing or potential access rights affecting the property.

- Sellers should fully disclose all access arrangements to avoid future legal claims.

- Engage conveyancers early to investigate and clarify access rights.

- Consider indemnity insurance if risks related to access rights exist.

- Address any access disputes before completion to avoid delays.