The title has no rights for drains, pipes and cables — does that matter?

There are no rights for services to cross the land

It is the less visible half of a missing-easement problem and often the more serious one. Where the road serving the property is privately owned and your title grants no rights over it, the same silence usually applies to the drains, pipes and cables running under it. Access you would notice losing. Services you would notice only when something had to be dug up.

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: Absence of Easement · See the wording

Why a private road creates two problems at once

An unadopted road is owned by somebody — frequently, in pieces, by each of the houses fronting it. Nobody has granted general rights over it, so passing along it and running services under it both depend on rights your title may not contain.

The service question bites when work is needed. Repairing or replacing a drain or a supply cable means entering land you may have no right to enter, and the moment that becomes urgent is a burst pipe rather than a convenient afternoon.

The proper fix, and why it usually does not happen

A deed of easement between all the affected owners. It grants the rights, it is permanent, and it ends the problem for everyone including future buyers.

It also requires every one of them to agree, pay their share and sign. On a road with several owners that is slow and expensive, and one holdout stops it. The Lexsure wording below is candid that this is the ideal solution and frequently not a practical one.

What the policy actually gives you

Financial cover if a third party tries to prevent your use of the services or the access. It does not rectify anything; it is a one-off premium paid on completion and it passes to future owners.

Two practical points. Your buyer's solicitor may not accept a policy, even though it passes — that is their client's decision, not something your policy settles. And you may be asked to top up the cover if the property's value rises substantially.

Ask the seller to pay for it. It is a defect in the title they are selling, which is a reasonable basis for asking, and the Lexsure wording shows exactly that request being made.

A long-use claim may also be available here in the same way as for access, and a statement of truth from the seller is worth obtaining either way.

Absence of Easement

Master precedent Lexsure e-ROTScope Private road, no easementsWord count 164Status Current master paragraph

The ideal solution and the only way of formally correcting this issue would be to have a Deed of Easement drawn up between all parties however in your instance as there are several parties involved this could end up being quite costly and time consuming.

As an alternative to this it is our suggestion that an Absence of Easement indemnity policy be taken out on completion in order to provide you with financial cover should any third party attempt to prevent your use of the services or access to and from the property. You should be aware that this does not rectify the issue; it simply acts as financial cover should it later become an issue. This is a one off payment made on completion and you will be able to pass this on to any future buyer but you should be aware it will be the buyers decision as to whether they are themselves willing to accept an indemnity policy in this regard. …

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