Buying a home is exciting, but for some properties, particularly in rural areas or older developments, access isn’t always as straightforward as it seems.
Whilst it’s natural to want to make a jump on the market and make your offer on somewhere you fall in love with, caution is advised. It’s important to understand whether there are any legal considerations around access and rights of way that could affect your purchase.
This can be overlooked, and without the proper due diligence, issues may arise over how you use your land, or even your right to access your own property in the first place.
What happens if the access to your property is owned by someone else? Let’s take a look at the legal considerations.
Why Access Can Be Complicated
Not all properties are connected to public roads. Some are accessed via:
- Private roads
- Country lanes
- Shared driveways
- Farm tracks or other unofficial paths
Just because a road or track leads to a property doesn’t mean you automatically have the legal right to use it. Without proper access rights, you could face:
- Disputes with neighbours over usage
- Costs for road maintenance or repairs
- Delays in completing your purchase
- Restrictions on land access once you move in
Checking Your Property’s Legal Rights of Way
When buying a property, it’s essential to confirm that legal access exists. A conveyancing solicitor will check:
- Index map search: To check whether the area is registered
- Title deeds: To see if rights of way are recorded, and that the property’s title is ‘good and marketable’.
- Property information form: To critique the seller’s response for any mention of access rights or disputes over legal rights of way.
- Maintenance obligations: To understand who is responsible for upkeep.
- Pre-existing indemnity cover: To review if the seller’s policy meets requirements and that ‘successors in title’ (i.e. future buyers) are also protected.
- Shared agreements: To ascertain whether pre-existing arrangements exist with neighbours.
How to Obtain Legal Access to Your Property
If rights of way are missing or unclear, there are solutions. A conveyancing solicitor can help arrange:
- Deeds of easement: A legal agreement giving the right to use someone else’s land. There are two types of easement, and three ways of creating an easement.
- Statutory declarations: Formal statements confirming access arrangements.
- Indemnity cover: Insurance protecting against future access disputes.
Practical Tips for Buyers
- Ask early: Find out from your estate agent if the property is on a private road or has unusual access arrangements.
- Check before you commit: Ensure your solicitor reviews the title deeds and confirms your rights of way.
- Consider the cost: Some access arrangements may involve ongoing maintenance responsibilities or contributions to shared repairs.
- Plan ahead: If access is unclear, don’t wait until exchange to resolve it. Early action can prevent delays.
Why Early Legal Advice Matters
By checking access rights early in the buying process, you can avoid unpleasant surprises and ensure your move goes smoothly. A solicitor experienced in residential conveyancing will:
- Identify any potential access issues
- Suggest practical legal solutions
- Provide peace of mind so you can focus on your new home
How Napthens Supports Clients
From purchases and sales to remortgages and more, our residential conveyancing team is here on hand to support. Visit our service page or get a quote now.
Our team structure ensures that each transaction is given proper due diligence. We ensure that each transaction receives 2x the resources compared to market average.
Buying or selling a complex property?
This is true of all of our conveyancing transactions. However, for complex properties such as those with external buildings, facilities, farming, sporting rights and other aspects that increase risk, we provide an enhanced conveyancing service called Prime. Visit our Prime service page for more information.
Buying or selling a landed estate or country home?
For clients owning or intending to purchase a landed estate or country house, we also have a dedicated expert team. Our landed estates team consists of conveyancing, real estate, rural and commercial solicitors. Visit our service page here to learn more.
FAQs
Can a neighbour block my right of way?
No. This may lead to legal action based on the blocking being nuisance or trespassing.
Can I change a right of way?
Yes. This must be agreed to by involved parties and legally documented and registered.
What happens if no right of way to my property exists?
You may not be able to use the property legally or get a mortgage on it. A solicitor can take action by arranging a deed of easement or help apply to the land registry to register a prescriptive right of way.
What are the two types of easement?
- Appurtenant: Tied to the land, benefiting one property and burdening another. They pass to future owners automatically. An example would be the right of way over a neighbour’s driveway.
- In gross: Tied to a person or company, not benefiting another piece of land. An example would be a power company’s right to run cables under your property’s land.
What are the three ways of creating of easement?
- Express: Granted or reserved in writing. Clear and legally enforceable.
- Implied: Not written down, but inferred from other laws, for example when access is absolutely necessary or access is clearly intended by both parties.
- Prescriptive: Acquired through long term use (usually 20 years or longer). These are based on evidence of continuous use.
What does ‘good and marketable’ mean in a title deed?
- In practice, a good and marketable title is one that shows:
- Any rights, easements or covenants have been properly recorded and unlikely to bring about dispute
- The seller legally owns the property
- All necessary documents are in place to prove this
- There are no competing ownership claims
- There are no known defects to the property
- The title is clear enough that the buyer (or their lender in case of a mortgage) would find it acceptable
- There are no legal issues that would make the property difficult to sell on in the future by the new owner or owners
Sarah Barnes | Partner, Head of Residential Conveyancing
Sarah Barnes is a partner and head of the residential conveyancing team, based in the firm's Preston office
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