Access to new dwelling off private lane - owner unknown

[William 1]

Good evening,

Hoping someone may be able to lend a helpful steer on our situation..

We have just bought a house on a private road - no access rights in title (owner of road unknown - stat dec/indemnity in place to prove unobstructed access to house and land of 20+ years- both fronting the private road).

We have decided to get planning for a house on the plot next to our current house. Is there any sceanrio whereby 'if' an owner came forward (as unlikely as it may be) then we would have to pay anything in order to get access to the new dwelling?

From what i understand, access is based on what it was used for previously. And obviously there woudn't have been a second house there previously. Suffice to say we would look to get an indemnity should no one come forth, but just curious if we are open to any potential claims other than additional road maintenance. And we already have an idemnity/stat dec (not an ST4) covering our access to the original house 'and land' if that counts for anything?

Thoughts appreciated,

Thanks

William

[Dan_Manchester]

Good morning, your solicitor should be able to confirm but I think as long as you have tried to find the owner and you've had access to the existing property for an extended period of time that you'll be fine.

You should be able to get indemnity insurance from Day 1 and it'll no doubt be required for the full value of the new dwelling when you come to sell/mortgage it on the basis that a house with no access is pretty worthless!

[William 1]

Good morning, and thanks for the response Dan.

We have actually spoken to a number of insurers re indemnities on the 'new dwelling' and they will not indemnify until planning has gone in (presumably due to lowering the risk to them of the owner coming forward following letters/signs on the planning app).

Hence we are in this awkward middle period whereby it may be a year or more until we sort planning and therefore getting an indemnity; and just concerned if someone did come forward in the interim or when the app goes in, do we still have rights to access the new dwelling..

[Section20z]

Not sure it makes any difference there being a house on the plot if you have had unfettered access to the land for 20 years.
Maybe put a goat on it.

[pilman]

An easement gained by prescription can only be used for the purpose established during the period of prescription, so a residential plot of land will now have the benefit attached to the whole of the plot.

That would mean that it is unlikely that an unknown owner could prevent the existing use of the road should a second dwelling be erected.

There should be no reason why an insurer will not issue an indemnity policy after taking into account the circumstance described in this posting.

If this is an ancient road you may even be able to establish that it was set out to provide access to the property you now own.

There was a legal process known as inclosure in many parishes in England and Wales in the 19th century.
Private roads leading to the various parcels of land awarded by Inclosure Commissioners were set out following an Act of Parliament.
It would be worth asking the local county archives if such an Inclosure Act was passed for your Parish.
You could be pleasantly surprised to find that you do have a legal right of way.

It's certainly worth some research without directly contacting any local individual land-owners.
Just use the archives, once they re-open after Covid.

[royw]

Are you making a new entrance from the road or will you access it through your own entrance? I think you're OK if it's the latter but not the former. The owner is likely to be someone who owns the land at the end or on either side from the highway to your property.

[William 1]

Thanks pilman, interesting to hear about this Inclosure Act. Re your comments "unlikely that an unknown owner could prevent the existing use of the road should a second dwelling be erected" - the reason for the posting was due to the fact that our solicitor wasn't convinced that the prescriptive rights we have obtained through the stat dec would pass to another dwelling, as from what i understand the rights are based on access to that one specific property and not a second one. Very happy to be told otherwise.

royw - thanks - the house and land both front the private lane; the house has a drive and footpath, while 15m further up the lane (same piece of connected land) there is another gate which would be the entrance to the new dwelling. Does that help?

Section20z - thanks - a goat would defintely be less stress..

[pilman]

there is another gate which would be the entrance to the new dwelling.

That would seem to provide evidence that the whole of the plot has been accessed from the lane, which would support a contention that the whole of the plot has acquired an easement, contrary to what your solicitor has stated.

That second entrance will certainly be taken into account by an under-writer asked to issue an indemnity policy, which ought to allow such a policy to be written.

[William 1]

Many thanks all for the comments, much appreciated.