Right of way/Access

[worriedfather]

Hi,

I own an old property (built 1650) which backs onto an unmade lane which we think is owned by the company that rents the farmers fields and land. We have a garage at the bottom of the garden and use the lane to gain access to the garage.
When we purchased the property, the local searches found several 'Statutory Declaration' from previous owners dating back to 1983 stating that they had access via this lane to the garage and that this right of access had never been challenged or stopped by the land owner.

2 questions:
- What do I need to do to make the right of way legalised and documented?
- The land owner is now threatening to stop the right of way. Can he if we have documented evidence that Right of Way has existed for more that 25 years?

Just to add, it appears the lane used to be the main road into our village 300 years ago and there is some doubt over who owns the land. That said our sewers run under this lane.

Thanks

[The Builder]

I'm no lawyer, Father, but, I've had plenty of experience with Stat Decs. With what you say, Stat Decs from 1983 with continuous use (even before then) should make it very unlikely for the right of way to be removed.

[worriedfather]

Builder, thankyou for the reply. That is what I thought as well. What I want though is to document this in such a way that it is legally binding.

[The Builder]

Again, in my experience ................ I doubt if you'll be able to better the Stat Decs. They arise often simply because of the lack of documentary evidence. A simple appraisal by a solicitor would put your mind at rest.

[sallybb]

have you copies of the deeds, there may be something in the depths, written further back than 1983..
Check O.S maps, it may show up as a lane /road

[heathfield]

Let's be clear...'Right of Access' and 'Right of Way' are very different - don't confuse the two. Strictly speaking, under 'Right of Access', the landowner cannot deny you access, but is perfectly entitled to allow such access by appointment only! Under 'Right of Way' you cannot be denied access at any time.

[madmaggot]

Bit late now I know, but as a POI, your solicitor should have told you that you can take out an insurance policy protecting you against this happening. Of course, because it's already being actioned, you can't now take out such a policy.

[worriedfather]

Hi madmaggot. I have just such an insurance policy which covers me up to the value of the house. I have also found a Land Registry entry which states '......the registerred proprietor claims that the land in this title has right of way.....'
Not quite enough for me. It needs to be firmer.

[cassa333]

You could try posting this on gardenlaw.co.uk as there is a lot of row issues come up and a couple of (possibly retired) legal eagles give answersw.

[madmaggot]

Perhaps you could make the claim on your insurance and use it/part of it to buy the legal right to use the lane. Most people have a price!

[buildersmate]

Worriedfather
Unfortunately you desire for a stronger set of statements in your land title is unlikely to be possible under the way the Land Registry (LR) operates. The terminology that you say appears is that used by the LR when a valid and acceptable Statutory Declaration has been registered with them, but where the ownership of the land cannot be verified over which the right of way is being claimed. This is because the LR has to be able to contact the owner of the land, and they cannot do this if the ownership of the land comprising the lane is not established. There are many hundreds of miles of lanes across the country in a similar situation to yours.
The right that you (as dominant landowner) have claimed is by prescription, that is using the Prescription Act 1832. The requirement to demonstrate in law for this to be successful is for a repeated use of the RoW over the sevient landowner's land, openly, and for a minimum of 20 years of use (not 25 years), and without permission of the servient landowner.
I suggest that you challenge this company to demonstrate they do own it; I don't reckon that they do.

[worriedfather]

Thank you all for your advise.