Buying a dream country home: Why intervening land could potentially be a problem
PUBLISHED: 12:58 28 September 2016 | UPDATED: 13:05 28 September 2016
Is there legal access from the public highway to the front gate?
You have found the property of your dreams - an old rectory set well back from the road opposite the village green and near the pub. The wisteria is well established so everything should be fine… shouldn’t it?
Not necessarily. From a property lawyer’s point of view, the intervening land is of interest as it could potentially be a problem. Who owns the open verge giving you protection from the road? Are there formal rights of access over it? What rights does anyone else have over it? What if access is challenged or blocked? Can anyone ask you to buy them off?
Good questions to ask before you start haggling over the chandelier and the sit on lawn mower include:
1. Does the title to the property have a formal right of way benefiting the title?
2. If not, can the landowner be traced? Some country landholdings are not registered at the Land Registry but this does not mean they do not have an owner.
3. So who does own the land? It may not be easy to find out but your enquiries should be limited and discreet to avoid rocking the boat and causing a problem where none currently exists. Don’t ask around in the pub!
4. If the owner is unknown, is there evidence of long use? If the house was built in the late 1800s there shouldn’t be a problem but is there any unequivocal proof?
5. Does anyone have an obligation to maintain the land? Potholes can ruin your suspension.
6. Is the land registered as common land or a town and village green? If so, others might have rights over it which would affect you or interfere with your view.
7. Do gas, electricity and water services run under the land?
Regardless of whether the answers rattle or reassure you, this is definitely an area to be resolved before you proceed with your purchase.
If you are considering selling your property, it is always worth asking your solicitor to review the title before the property goes on the market in case any remedial or additional paperwork is needed to ensure a smooth sale. And if the land around your dream home is owned by others, what do you do? The proper and best course of action is for the landowner to grant a formal right of way before contracts are exchanged. As there will be a cost for this, a seller should budget for this as no buyer would expect to pay.
Plan B is for the seller to provide a chain of formal declarations proving beyond doubt that uninterrupted rights have been exercised for a minimum of 20 — and preferably 40 - years. A single premium indemnity policy can also be put in place as a back-up.
But these solutions are mutually exclusive. Once the landowner has been approached, indemnity cover cannot be obtained. Caution is required, so talk to your solicitor about your particular circumstances before taking any action.
For legal advice on residential, buy to let and investment property or land law issues, please contact Clare Dove or Tim Rafter in the Guildford office of Penningtons Manches on 01483 791 800 or visit our website at www.penningtons.co.uk