13th July 2020

Access to Property

Most property owners have no issue with access to their property as it adjoins the public highway and there are no particular restrictions, apart from the usual highways regulations.  There may be some complexity to developing property, but on a day to day basis the entry and egress does not present any cause for concern.

However, there are also many owners who need to cross somebody else’s land to reach their property, and this is where the fun begins! 

Ideally rights to cross somebody else’s land (known as an easement) should be properly documented.  That way, when the property is sold or mortgaged, everyone involved knows that the rights exist, the route of any access and any restrictions.  If you are considering buying a property with such an access, the restrictions are particularly important.  For example, they may limit use to one dwelling house or for agricultural purposes only.  In the case of the former, it’s not possible to build more houses in the orchard and in the latter case, you can’t turn the farm buildings into storage units.  If such works of development are proposed, then it is vital that landowners understand the access rights and agree any amendments with the servient owner.  Often the servient owner (the neighbour) will seek to impose a payment for permitting changes to be made, as there is usually some value to the dominant owner.        

It may be that the servient owner does not agree to any changes, irrespective of money.  Perhaps the right of access runs past their front door and they do not wish to see more traffic using it.

If a property owner assumes that they may intensify an access they may find that there are subsequent struggles when they come to sell or re-mortgage, not to mention practical difficulties with an aggrieved neighbour.

Often rights of access are not documented and this can cause difficulties for all involved.  As with documented access, there is a presumption that the use cannot be intensified, so crossing a neighbour’s land for a housing development is not on.  If the neighbour is known, then some agreement could (hopefully) be reached, but if not, then problems are compounded.  In terms of identifying the type of access, this can be implied, especially where access if taken out of necessity.  Perhaps the access is the only way to reach a property and it would be inequitable for access to be denied.  If the matter proceeds to Court, then the Court would look at the intentions of the parties at times when the property has been sold.      

Access can be gained by prescription.  This is where it has been used for more than twenty years without permission and without charge.  Again, the use cannot be intensified from the existing use.

Finally, maintenance of shared rights of access can often be a cause of concern.  Many documents refer to the user’s payment of their share by reference to their use.  This means that a haulage firm, with a fleet of large lorries should pay more than the neighbour with a small family car.  Unfortunately, disputes are common and compelling users to pay can be difficult.

In Oakwood’s experience, many property owners pay scant regard to access and have no real understanding of the implications.  In practice, of course, most arrangements work just fine, but issues tend to arise on a change of owner, intensification of use, re-development or need to repair.

It is perhaps worth touching briefly on rights for service infrastructure over private land (e.g. water pipes, gas mains, electric cables).  Unless these are provided by the respective utility companies, the rights flow very much as set out above for access.  You cannot unilaterally install apparatus over a neighbour’s land to reach your own property so, again, documentation is key.    

The presence, or otherwise, of a formal access can change the value of the property.  This is where Oakwood has a role to play, we often negotiate for access rights to be changed and assess the value of those rights.

In summary, if you are contemplating purchasing a property which does not front the public highway, take great care to understand how access is achieved and on what basis.  Ideally seek formal documentation and where this is not available seek insurance.  Pay particular attention if your intention is to redevelop a property so as to ensure that you have the requisite rights.         

Graham Bowcock

MRICS MRAC

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