deed of grant of easement

[maccyds]

We are purchasing a property and our solicitor has discovered that part of the front garden and driveway doesn't belong to the vendors so effectively the land is 'landlocked'. Our solicitor has discovered that the land actually belongs to the local council and has asked the vendors to obtain a 'deed of grant of easement', before we exchange contracts.
They have said they are not willing to do this and will only sign a statutory declaration enabling us to register prescriptive rights with the land registry. (they have lived there for 26 years). They have also said they will meet no cost involved and wont even pay for an indemnity insurance policy.
Our solicitor says this is no good, they must 'make the property saleable' and provide us with a grant of easement.
We are at a stalemate, and would just like to know from an independent party how serious would the implications be if we just went ahead with the purchase?

[meglet]

Personally I would not go ahead with the purchase as it stands. You may well end up not being able to park on or cross your driveway.

If you are really keen on the property then ask your solicitor if a compromise can be sought and if you can apply to the council for the deed of grant of easement yourselves. If the vendors have been using this land in this manner for as long as you say then the council are unlikely to refuse.

Or find out how much it will cost the vendors. They may not have the ready cash and may accept a reduction of the sale price to cover the costs. Remind them that they aren't going to be able to sell the property with its current restrictions!

[buildersmate]

Your solicitor is there to protect your interests - that why its you that are paying him.
I suspect they are technically correct about you being able to claim a right of access by prescription if you nare armed with a stautory declaration - the minimum passage of time for which is 20 years.
But why take the risk? And why should you do all the work for nothing? Its their problem, and they have to sort out. And of course its worth the point made above on the lines of 'actually your house is unsaleable in its present state, pal'

[Eve]

If you're getting a mortgage the lenders will have a big problem selling it as most lenders wouldn't be happy with the lack of formal easement, basically any problem which would hinder then selling it on easily in event of repossession.

Is the property registered?

I wouldn't be too sure about whether an indemnity policy would be issued it it's council land as I've had issues trying to insure on that basis previously. If the council are approached then any indemnity policy would be voided in any event.

With it being part of the garden and drive, it might be worth checking the deeds in case any mistake was made on the plans, I've seen it happen before and got the Land Registry (if registered) to sort it out. Get your solicitor to doublecheck the deed plans.

If the land is unregistered could there be a missing deed somewhere? Might be worth checking with the Land Registry esp if the issue affects other properties as a document could have been missed or not produced on first registration.

Any issues faced now would be faced by you if you wanted to sell, remortgage etc... so you could be making future problems for yourselves.

Do neighbours suffer the same problem? Could be a possible solution in there somewhere if so, I'm guessing your solicitor has a copy of the council's title so it might be obvious if it affects more than the property you are purchasing.

I wouldn't budge until a proper solution is found.

May be worth considering adverse possession due to the time frame, trying to get possessory title.

There is some info on registering prescriptive rights here...

http://www.landregistry.gov.uk/assets/library/ documents/lrpg052.pdf

[Eve]

Ps in order to register a prescriptive easement, I'd be keen to have it registered before you buy the property as the Land Registry may want to inspect and may serve notice on the council!

I'd want it sorted so you don't end up with a nightmare trying to sort things out afterwards.

[maccyds]

Hi and thanks for all your replies.
After a lot of arguing and us saying we would pull out of the sale they have finally agreed to approach council for the grant of easement! Phew! What a nightmare!