Lexsure e-ROT

Rights of Access · Report on Title scenario

The title gives no right of way over the access to the property

The seller has been using it; that is not the same as being entitled to. Where an accessway is not adopted by the council and your title contains no express right over it, you are relying on something other than a granted right — and the person who owns the land could in principle stop you. The usual answer is insurance, and it is important to be clear that insurance does not create the right.

From the e-ROT archive

This scenario is drawn from Report on Title material dealing with this specific circumstance.

Lexsure master Report on Title paragraph: Insufficient Rights of Way Over Rear Access · See the wording

What the policy does, and the one thing it does not

An absence-of-access policy covers the financial consequences of somebody preventing you from using the accessway: the loss, the legal costs, the diminution in value.

It does not grant you a right of way. If the owner of the land blocks it, you have a claim against an insurer and still no route to your back gate. For an access you actively need, that distinction is the whole question.

It does run with the property and passes to future owners, which is the ordinary and useful feature of these policies.

Already bought, and someone is blocking the access?

If you are being prevented from using an access you believed you had, what was reported to you about the rights during the purchase is where the question starts.

Find out what should have been explained → WhenIBought.com

The condition people breach without realising

Insurers of this kind of policy commonly require that its existence is not disclosed to anybody except lenders and potential purchasers. Telling the neighbour who owns the land that you have insured against him is exactly the disclosure the condition prohibits.

The same logic as every other indemnity: the cover depends on the risk staying dormant. Raising the subject with the person who could assert the right is what wakes it up.

Keep the policy somewhere you will find it, and hand it on when you sell.

The claim that may already exist

Where an access has been used openly and without interruption for a long period, a right can arise by prescription — a right established by long use rather than by grant — and it can be registered.

The evidence is the difficulty. It is usually assembled from statements of truth by the people who have used the access, which is why a statement from your seller is worth obtaining on completion even when a policy is being taken: it starts a chain of evidence that you can add to and hand on.

Whether a prescriptive claim is available here, and what period applies, is a question for your conveyancer on the facts. If you need a right rather than compensation, ask about the deed of easement route as well — it is more work and it is the only thing that produces the right itself.

From the e-ROT archive

Report on Title paragraph

Insufficient Rights of Way Over Rear Access

Master precedent Lexsure e-ROTScope Unadopted rear accesswayWord count 163Status Current master paragraph

Given that we can find no evidence of a legal right to use the accessway, an indemnity insurance policy is required to protect against the costs which may result from someone preventing you from using the accessway. The policy should protect you from a financial position but of course it is not able to do anything other than that – it does not grant a right of way. Should you require an express right to be granted to you, additional work will be required and we can advise you of the additional legal fees and work involved should this be the case.

We will provide you with a copy of the indemnity policy on completion and you should keep it somewhere safe. Importantly, the policy can also be passed on to future owners of the Property. It is a condition of the insurers that the existence of such indemnity policy is not disclosed to any third party other than lenders and potential purchasers. …

Master precedent wording. This is current Lexsure Report on Title material, shown here in extract and reproduced exactly, including the leading space on the second paragraph. The policy condition it describes is that insurer's; read the terms of any policy offered to you.

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