Access Rights / Easements & Deeds

[freddiemercurystwin]

All legalities aside I'd look for the seller to create their own access prior to the sale or walk away, as painful as that may be I think otherwise you're potentially opening yourself up to a world of pain. As mentioned the seller is just being unreasonable and unrealistic, the upsetting the tenant thing is red herring, if they installed their own path I can't see why the existing tenant wouldn't see that as a positive rather than something to worry about.

 

[mrrusty]

and I'm now thinking an easement that would be limited to 5 years after completion of our property purchase

I think you'll find a time limited "easement" is a license. My understanding is that an easement is a "legal interest over land" owned by the dominant tenement that persists for ever - it is a "thing" owned by the dominant tenement (in the same way that the freehold is a "legal interest in land") that cannot be rescinded or interfered with by the servient tenement (you). Once granted, it is theirs not yours - in effect you give away control of part of your land. I think you need a property lawyer....

 

[ProBodger]

Thanks again to all for your advice.
IF we proceed, even with the "easement" in place, I think being in possession of the property gives you cheap, practical day-to-day control of the situation, putting the onus on the "other" party/ies to take very costly legal action. Most people, like us, are reasonable and don't want to create aggro for the sake of it, but we're also not push-overs, so we'll do what we think needs to be done to protect our interests when the time comes.
We've also got solicitors advising, and are still thinking this over.

 

[mrrusty]

IF we proceed, even with the "easement" in place, I think being in possession of the property gives you cheap, practical day-to-day control of the situation, putting the onus on the "other" party/ies to take very costly legal action

No I think you misunderstand. Once there is an easement granting a right of way, you might still own the land, but the dominant tenement (i.e. the beneficiary of the easement) owns the legal interest over the land - note "dominant". They can maintain the right of way, remove any obstructions, seek injunctions and litigation against anyone substantially interfering with their access (which they would easily win and ultimately damages would be paid by the "trespasser", - that would be you, "trespassing" against their legal interest over the land - even though you "own" it). The "servient" tenement which has granted the easement has very few rights at all - I have first hand experience here- we own a track over which others have rights of access.

Just to re-emphasise that currently, with the whole property in single ownership there is no legal right of way at all - whether there is one in the future will depend on how the title is split up and what easements and licenses are created at that time.

 

[ProBodger]

Thanks Rusty, get the point. Our official legal advice is that as the easement as worded would be created as part of the transfer when the properties are separated, is quite weak in law, and would be open to challenge (by us, if we were up for that). The proposed easement is also clearly time limited, would end x months after sale of "Other" property, which also gives a bit of reassurance.
Have got a Plan B but that also has some access issues (different ones though, am posting a new thread about that).

 

[mrrusty]

The proposed easement is also clearly time limited

Is it? This is getting complicated - an easement runs with the land, a license is an agreement between people. My understanding is that an easement can be for a fixed period, but can't be open-ended. See here https://harperjames.co.uk/article/easements/ I wouldn't rely on a conveyancing solicitor to be fully up to speed on land-law and a badly drafted easement may not be enforceable in the way you expect. I still think you need professional advice from a specialist in land law.