Conveyancing - Rights over land

3 SEPTEMBER 2024 12:20

 Rights over land which allows one land owner to use the land of another is known as an easement. A common example of which is a right of way. Easements can be created by an express grant or by a prescriptive easement. A prescriptive easement means a legal easement may be presumed to have been granted if the claimant can show long and continuous use. Under the Prescription Act 1832, this must be at least 20 years.

Your solicitor will likely ask the seller’s solicitor for a Statutory Declaration and an access indemnity policy. This statutory declaration will come from the seller and will confirm they have used the road without issue for their period of ownership. This will provide evidence to show 20 years use. You may even find that your seller was provided a declaration on their purchase. An indemnity policy will cover you financially should anyone obstruct or stop you using the road as access to the property.

A caution against first registration is a form of protection for interests affecting unregistered land. It’s effect is to require HM Land Registry to give the person who has applied for the caution – the cautioner – notice of an application for first registration of the land.

This is beneficial when, for example, a road which forms part of the access to the property is not owned or maintained by the Local Authority and not registered at the Land Registry.  A caution would alert you to any potential registration (such as when the land is sold to a new owner). Practically, this means that the solicitor acting for the purchaser of the road would be made aware of the existence of your caution. The solicitor would then have to ensure that your interest is dealt with before proceeding with the purchase.  This is an effective way of protecting an interest in unregistered property i.e. your right to use the road to access the property.

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