Access Rights / Easements & Deeds

[ProBodger]

Apologies if this is not in the best bit of the forum. We're in the final throws of purchasing a semi-d property. Both halves of the semi are owned by the same people. The half we want to buy was rented out for years but it's now empty. The "Other" half is rented to an old person who's been there for years (more than 30). The semi's are over 100 years old and need a lot of attention.
Both halves have front gardens bordered by a hedge that fronts onto the road.
Only "Our" half has a footpath, which gives access from the road, up through the front garden to the front door. The tenant in the "Other" half uses the same path, which continues on round to their front door.

There is plenty of space for a footpath for the "Other" half, the vendors just haven't had any pressure to do it before, and don't want to before selling "Our" half.
As part of the sale, the vendors want to us to agree to continue sharing the path with the "Other" semi after we buy, to not upset the elderly tenant - we're not set against doing that, as long as we wouldn't be creating some kind of "right of way" that wouldn't end cleanly once the tenant moves out or the other house is changes owners.
My beef is that the vendors are also insisting that we must agree to give the same access rights to any new owner of next door for 3 months after the "Other" property is sold.
I really don't like that on principle - new owners of the "Other" property could very easily open up their own access across their own property to their house. Once we've sorted out "Our" half and made good, we don't want the "Other" halves workmen turning up to do their refurb tramping all over our patch to get to their property. I'm also thinking that extending access for new owners of the "other" semi past the sale will give more weight to a possible later claim for continuing shared access up the path.
The thing is, maybe I'm just overthinking, as I also reckon a future next door owner is not going to try and push to extend sharing of the footpath past the 3 months - why would they when buying their own place they could also easily create their own?
Would it really be so bad for us legally to agree to a 3 month easement for new owners next door?
We have been using solicitors for the conveyancing etc., but they have really been so cr*p, slow or just never responding to questions, dragging things out, really expensive and hard work , missing or not explaining basic things in the transfer docs/deeds etc. etc.
I got advice from another solicitor who said a license to allow the "Other" semi to keep using the path for some time would be "cleaner" as it wouldn't appear on the title/deeds/transfer, and needn't cost anything ( I could write one up) but the vendors squished that idea as not given the tenant enough protection.
Advice appreciated.

 

[^woody^]

Yes you need a licence which would be to your terms and could be revoked by you at some future time when an alternative path is made. It would give the licencee protection as its a formal agreement.

The licencee would be the owner not the tenant. The owner will have their own agreement with their tenant.

You need to sort this out now otherwise it's more difficult and more costly later ... if the other party even agrees to it once you have purchased

 

[wessex101]

I assume the 3 month grace period is to give new owners time to build a new path. otherwise from day 1 they would have no access to the property.
The devil will be in the detail. The grant of access will need to be worded very carefully to avoid inadvertently granting more rights than intended. From my very limited property law knowledge I seem to remember a licence is the least secure form of agreement from the terms of the "tenant", so maybe a 3 month licence to use the path might be worth investigating.

 

[ProBodger]

Thanks both - I also figured a license would be better, and wouldn't appear on Land Registry, but that option isn't a goer for the vendors. I've also been told that if the arrangement lasted more another 19 years after our completion date then the "Other" property might claim access rights due to habitual use for over 20 years. I'm pretty sure I've read elsewhere on the forum that as an owner affected you would get notice of that claim and of course I'd challenge that - if not already moved on or pushing up daisies. My real worry would be how this arrangement might affect the value of "Our" property, if/when we try and sell on in future, how it might affect someone trying to buy, getting a mortgage etc.

 

[mrrusty]

IMHO you must as a minimum insist on a formal license with the vendor/landlord or no-sale. A license will prohibit the right of access being acquired through prescription (you can't acquire a right you already have a license for). I'm not sure if a tenant can acquire a prescriptive easement over time, but if they can, they may already be in a position to claim it, but that's a legal process the tenant probably won't want to spend money on. You could ask on the rights of way forum over at gardenlaw as there are a couple of property law specialists there. It's potentially a recipe for future problems.

If it's the same freeholder who is landlord for the neighbour and your vendor, I would suggest the sale is dependant on the landlord constructing a new path for the neighbour and selling your side unencumbered by future issues. He's selling, he should put the effort in to make it saleable.

If you don't sort this before your purchase, it's a potential box of frogs that could jump out in all sorts of directions in the future.

 

[ProBodger]

Thanks Rusty, I agree that creating a dedicated access really should be done by the vendor before sale, but that option's not on on the table. We can walk away, but partly due to slow and sh*tty legal advice performance earlier in the sale, we've already been drawn in, and are heavily financially committed (never mind the time and stress etc).
What I'm trying to understand is the likely costs of proceeding v those from walking away and starting from scratch with another property, and it's not just the money.
From all the advice it feels like we could go ahead with a small real chance of trouble, but because of the fuzzy legal situation there will be a risk that a future narky neighbour could cause some shenanigans - some of those frogs might get out of their box.
Just grateful we've got options to buy somewhere, unlike most of the youngsters we know.

 

[^woody^]

Depending on the existing wording of access - ie just allow "access" across the property or to allow via a maintained foot path, could mean that you could potentially do what the farmers do and remove the bit of path in front of the window and leave a muddy patch, or plant an over-growing thorn bush or something, and then it becomes uninviting to use the access even though access is still permitted.

To deny acquisition of access rights you just need to fit a gate and lock it or drop a pallet there once a year IIRC.

As always with these things, you need to think of the future and change of neighbours who you may not get on with.

 

[mrrusty]

I'm struggling to see what the landlord/vendors difficulty is. You grant him a license to allow his tenant to walk across the path. The license being valid until the tenant changes/house is sold in which case the license will be withdrawn 3 months after the change. It's hardly rocket science. If the vendor won't agree to this HE must envisage future difficulties you perhaps have not envisaged. (I have my suspicion!)

Whatever your position, buying a property where the neighbour accesses their property across your land and where that access is not formally registered/documented is a recipe for future pain. I'm even slightly surprised your own mortgage company would proceed if they have knowledge of this situation.

I'm not sure @^woody^ 's suggestion is particularly helpful because if it is already a right of access because it is documented or has been acquired through prescriptive use (i.e. it is a fact it is a ROA gained through use, it just hasn't been registered) then you can't legally block it, and the owner of the ROA always has the right to maintain and repair.

The license route has the benefit of preventing prescriptive access being acquired because you can't acquire something you already have a license for and if the vendor signs this, then he is admitting there is no chance of him seeking prescriptive access. The fact that he doesn't want to do this to me suggests something fishy

Perhaps he thinks he can get you to buy it and then thinks he has enough evidence to enforce registration of a prescriptive easement (through 30 years use) and you would then be stuck with it for ever more...

And sometimes, you just have to cut your losses. I've done it at the 59th minute, and lost a couple of £K, but then made it up later on by being a cash buyer and negotiating a discount on the property we eventually bought. Buying and selling is a tough game...

 

[mrrusty]

I'm going to leave the last post up, but I've just realised that it's probably Bx because the vendor owns BOTH properties, and you can't grant or obtain a ROW across your own land. The situation is clear - there is no right of way at all - the properties are in the same ownership. There are ONLY 3 outcomes:

1) The seller arranges a documented right of way which is sold with the property and will persist for ever.
2) The seller agrees a license which will terminate according to the wording of the license
3) You buy the property with no license and no documented right of way in the title, fence it all off and prevent the access.

 

[ProBodger]

Thanks again both. We're trying to find something that works for both us and the vendor, and I'm now thinking an easement that would be limited to 5 years after completion of our property purchase (instead of 3 months after the "other" property being purchased), and having that term included in the transfer documents instead (when the semi's titles get separated as part of transfer).
Basically we want to end up owning a property that won't be awkward for another buyer to get a mortgage on (assuming they need one), and where we are on good terms with the neighbours (and the owners when these are different), with minimum stress about access, boundaries, shared services etc.

Woody - the wording says "access via the footpath on xxx", and I hear what you say about the farmers "fix" - we'd rather keep on reasonable terms with the tenant (and owners), but at the same time there is a limit to what is a reasonable length of time to be sharing access, especially as circumstances can change.

Rusty - I think we're aiming for a bastardized version of your 1). The current easement terms in the transfer docs (that will come into effect as part of the sale) limits the shared access for three months after the "Other" property is sold. But there is no time limit on when the "Other" property will actually get sold, and we're not happy with that sharing arrangement going on indefinitely, which is why we're looking for a 5 years limit that starts when we've completed.

Luckily we don't have to deal with a mortgage. But we also don't want our family to have to deal with another load of unnecessary cr*p after we've gone.

 

[^woody^]

I'm not sure @^woody^ 's suggestion is particularly helpful because if it is already a right of access because it is documented or has been acquired through prescriptive use (i.e. it is a fact it is a ROA gained through use, it just hasn't been registered) then you can't legally block it, and the owner of the ROA always has the right to maintain and repair.

It's helpfull by making the route uninviting to use even if use is allowed, so the neighbours make their own path.

 

[charliegolf]

I'd make the route very inviting, by laying 20 slabs and a gate for the old boy next door. You can bet the vendor will go for that! And probably pay half if he has to do nothing.

Then take the boundary to the property wall.

 

[Mottie]

How would you get on if you wanted for example, to build a front extension?

never mind the time and stress etc).

Which is nothing compared to what it could be further down the road. If it was me, I’d say make them build their own path or I’d walk away.

 

[Harry Bloomfield]

I'd make the route very inviting, by laying 20 slabs and a gate for the old boy next door. You can bet the vendor will go for that! And probably pay half if he has to do nothing.

Then take the boundary to the property wall.

I was about to say something quite similar - If all that is in the way, is some grass, and maybe a hedge, why the kerfuffle, about the right to share your path? It just makes no sense, if it is so easy to resolve..

 

[robinbanks]

When you buy their property they will have plenty of cash to fit a footpath on their side