Access - where do we stand?

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    Access - where do we stand?

    Not a conveyancing question but seems to be the most appropriate forum.
    40 years ago FIL made a verbal agreement with the neighbour so he could use a corner of our field to widen their gateway in return for access to our field further down their private road. We have maintained access ever since. Although you can get to farmhouse this way you'd need a 4WD. OH has since inherited the farm and the neighbours are planning to move. I don't think they will agree to getting it sorted out properly.
    Where do we stand?

    #2
    You seem to be trying to describe an equitable easement if I understand your slightly confusing posting correctly.

    In return for creating a wider gateway using your land the neighbour granted a right of way over a private road to access your field.

    The gate remains and you want to know if the right of way will continue to exist even when the neighbours move away.

    Is that correct?

    Comment


      #3
      Yes. I'd like to know if either party can enforce their benefit or if either can remove it. Whoever buys it is likely to try to stop our access as there's nothing in the deeds. I have a horrible feeling theirs may be more enforceable than ours.

      Comment


        #4
        I agree with Pilman that this has all the hallmarks of an equitable easement. Such a right can be protected (in the case of registered land) by a unilateral notice and (in the case of unregistered land) by a class D(iii) land charge. However, in your case the right to register may have been lost since the person with whom the arrangement was made is no longer involved. It would be different if his successor has continued with the arrangement.

        Comment


          #5
          Originally posted by royw View Post
          I have a horrible feeling theirs may be more enforceable than ours.
          Based on the information you have given us, that seems unlikely. As always though, in this sort of case the devil can be in the detail.

          Comment


            #6
            It may also be a situation whereby each party has the benefit that cannot be disturbed due to estoppel.

            40 years has passed during which time the parties have not disputed each of the rights, so it should not be possible now for one land-owner to object to the use the other land-owner is making of the respective parcels of land in separate ownership.

            Comment


              #7
              Lawcruncher,

              The neighbour is the original neighbour. Our farm passed by inheritance from parent to offspring five years ago, currently owned by OH. The arrangement on both sides has been maintained for the last 40 years. Would OH be able to register it? Both properties are registered on LR.
              Off to read up about unilateral notices.

              Comment


                #8
                Would OH be able to register it?

                Yes, given your clarification.

                You can read about unilateral notices here: https://www.gov.uk/government/public...n-the-register

                Comment


                  #9
                  Thanks Lawcruncher. An agreed notice would be my preferred option if it's viable, that way there isn't the threat of the neighbour or subsequent owner withdrawing it in the future when it might be harder to establish the validity of the claim. In the absence of a written agreement would statements from neighbours who have witnessed our use of the access be sufficient to establish the validity of the claim?

                  Comment


                    #10
                    pilman,

                    That's nice to know. My main concern is that the new owner's won't know about the agreement and will try to stop our access, then no doubt an expensive legal case for us to try to prove we do. Getting it sorted out now would be much better for us but there's no incentive for current neighbour to do so.

                    Comment


                      #11
                      Start using it more frequently, so that if they have viewings, people will see it being used and not question it.

                      Comment


                        #12
                        Originally posted by royw View Post
                        In the absence of a written agreement would statements from neighbours who have witnessed our use of the access be sufficient to establish the validity of the claim?
                        They will help, but may not be sufficient on their own.

                        Comment


                          #13
                          Originally posted by pilman View Post
                          40 years has passed during which time the parties have not disputed each of the rights, so it should not be possible now for one land-owner to object to the use the other land-owner is making of the respective parcels of land in separate ownership.
                          Since permission was given prescription cannot apply.

                          Comment


                            #14
                            Since permission was given prescription cannot apply.
                            But doesn't estoppel apply, since each party has taken the benefit of the equitable easements each granted verbally?

                            Comment

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