When is a door not a door? – When it’s a jar!

When is a door not a door, access rights

When is an accessway not an accessway? When it looks like an access but you have no rights to actually use it.

It is not uncommon for assumptions to be made that a property has an access to the public highway if there is an access physically present. This is not always the case.

What if no rights were ever granted?

It is possible to acquire rights. This could be by agreement or by long user (a prescriptive easement).

Where there is an agreement to grant rights, this is known as a deed of easement. The person acquiring the rights usually makes some kind of payment or concession to the person over whose land the rights are being granted (the servient land). This payment will always depend on the strength of the negotiating position of each of the respective parties. The deed is then registered at the Land Registry and the right of way becomes enshrined.

Sometimes it is not possible to trace the owner of the servient land or that owner is unwilling to co-operate. In those circumstances, the person benefitting from the access may be able to claim the rights anyway by demonstrating 20 years’ user. That use must also be for the benefit of their land and not for their personal benefit. A specific application must be made to the Land Registry with supporting evidence. The Land Registry then have a specific procedure to be followed including notifying the owner of the land (if registered) before the easement can be noted on the title.

If sufficient user cannot be demonstrated, then it is possible to obtain indemnity insurance to cover the risk. The decision can then be made at a later date to make an application for a prescriptive easement. It is, however, vital that no discussions are entered into with the owner of the servient land. If any potential problem is brought to their attention, it would then not be possible to insure against the risk as they would have been put on notice!

This is not legal advice; it is intended to provide information of general interest about current legal issues.

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Tamzin Mandelli

Associate, Commercial Property

Prior to joining Hart Brown, Tamzin had worked for a local authority, for both regional and national firms, and she had managed her own firm....

Associate, Commercial Property

Tamzin Mandelli

Prior to joining Hart Brown, Tamzin had worked for a local authority, for both regional and national firms, and she had managed her own firm.

Tamzin specialises in all aspects of commercial property including the sale and purchase of shops, offices and restaurants, landlord and tenant matters (from granting the new lease, through to the various licences for works, transfers and so on) and dealing with the eventual termination of a lease. She is also experienced at dealing with development work including option agreements and acquisitions.

Her most memorable case was the lease of some advertising space – for a well known electronics company in Leicester Square!

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