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HELP! Servitude right of access through inside of home?? SCOTLAND

(16 Posts)
PanicAtTheProperty Fri 20-Oct-17 18:41:51

Long story short. MIL passed away recently and we thought we had a sale sorted for her flat which is above a commercial property. Spoke to the buyer and he says his solicitor has pointed out that the loft space is owned by all 4 properties (2 commercial below, 2 flats above) and that means the commercial properties could, for example, say they want to use the loft space as storage and we would have to grant access. However, the only way to access the loft is from MIL's (or neighbouring) flat. So surely this can't be true? They are now concerned and I think reconsidering buying based on this information. Our deeds state a servitude right of access but all google info about this related to land and gardens etc, not actually entering someone's home?! I understand access for repairs to roof or in emergencies but surely no more than this?

We have been in touch with our solicitor today but they didn't reply until near close of business so no time to clarify points. They did confirm the loft space is listed as common.

Google has also led me to read about negative prescription and rights being extinguished after 20 years, no one has entered the property for access in more than 20 years but would this apply in this instance and we have no way to prove it?

Can anyone please help?

Collaborate Fri 20-Oct-17 19:37:06

In English law you don’t lose a right of way by not exercising it. Don’t know about Scots law though. Wait until you speak to your solicitor next week.

cdtaylornats Fri 20-Oct-17 23:19:53

Presumably that would mean they also had responsibilities as far as repairing and maintaining that space and the roof.

user1487194234 Sat 21-Oct-17 11:20:23

Does the servitude right specify what it is excersisable over
I think for it to be exercisable over the flat itself this would have to be specifically stated in the deeds
A servitude would be cancelled by the 20 year negative prescription but that would have to be evidenced

They would continue to have the sale ownership rights

starving Sat 21-Oct-17 17:45:13

PanicAtTheProperty sent you a pm

PanicAtTheProperty Sat 21-Oct-17 21:29:59

Thankyou, thankyou for all your replies. It says "together with a servitude right of access at all reasonable times and upon giving reasonable notice, except in the case of an emergency, over and through the said southmost upper floor flatted dwellinghouse."

Sorry, what does sale ownership rights mean?

They do have responsibility for roof repairs and maintenance too but a few attempts to have them contribute over the years have had no response. The owners live in England and rent the space out.

user1487194234 Sat 21-Oct-17 22:19:03

Sorry same ownership rights So they still own itLooks like the title gives them a servitude right of access This needs to be rebutted by saying not being used for over 20 years Did your MIL live there for over 20 e

PanicAtTheProperty Sat 21-Oct-17 23:03:54

Yes, she bought in 1995 and no one has ever gone in from downstairs (or next door) since then. She/her insurance has dealt with all related roof costs/repairs since then and she's never had a response to letters to downstairs commercial property owners since then. It was 2 properties below which were knocked into one.

starving Sat 21-Oct-17 23:10:22

The loft space (and presumably roof) if held in common means that any maintenance is shared between all of the owners, which is a good thing. The top floor owner doesn't then get saddled with the whole of a roof repair.

This clause is often encountered in deeds where anything is owned in common to allow access for maintenance. It does not mean that they have the right to store anything there (neither does the flat owner!). It may be that there are communal water tanks there (frequently encountered in council housing). What it does mean is that if there is a leak in the roof then thay can get access to the roof space and roof through the flat.

As said this is a relatively common scenario, however what is also fairly common is for the top floor owner to acquire ownership of the roof space (and roof) immediately above their flat in order to extend the property.

PanicAtTheProperty Sun 22-Oct-17 00:51:46

Do you know how easy it is likely to be to acquire ownership of the roof space? Are we likely to have to pay for it? Our solicitor emailed at close of business on Friday to say he could pursue that but we'd be liable for costs of all parties which is an issue for us as dealing with the funeral and estate costs have already fallen solely to us and we thought a simple sale would allow us recoup these but we can't afford any more expenses, especially if this is now going to be a long drawn out selling process. It's so frustrating that it was so late on Friday we got a reply that we are left panicking over the weekend. Buyers solicitor definitely seems concerned so buyer obviously is now too.

user1487194234 Sun 22-Oct-17 08:26:44

IME acquiring part of a property owned in common by others takes a long time as there is no real incentive for the other owners to prioritise it You would probably have to pay them something,you would certainly have to pay their legal fees as well as your own
Would the purchasers really want this as it would give them sole responsibility for the costs
It doesn't seem to me to be a situation to give the purchasers undue concern
Speak to your solicitor tomorrow and take their advice To be fair to them they would have been busy on Friday with settlements and this is not the sort of thing you can deal with without some thought and research

starving Mon 23-Oct-17 07:38:01

Transfers of part of common property do happen. There is usually some kind of monetary consideration but sometimes it is "in consideration of taking over sole maintenance"

Just to be clear I have had sight of the actual deeds for this property and while the statement about access is correct it is slightly taken out of context as it is access to ALL of the common parts including mains water supply pipes, sewage and drainage pipes and the attic and roof FOR THE PURPOSE OF CARRYING OUT REPAIRS AND MAINTENANCE AND FOR ALL OTHER NECESSARY PURPOSES. Taken IN context this is a usual clause and would not cause me any concern.

PanicAtTheProperty Mon 23-Oct-17 11:00:31

Thankyou everyone for your replies, I appreciate you so much taking time to share your knowledge. The buyer does seem more reluctant with the new information. He would be prepared to pay for the loft space from downstairs but the fact they have ignored all previous correspondence seems like it may not be quick or easy. Ideally I think he'd like us to pursue it before he buys but we can't afford the costs for all parties and a fee to pay for the space as our solicitor and people on here have said we'd need to do and it's not something we want to do time wise either so I think we may lose our buyer and may just need to decide where we go to from here unfortunately.

starving Mon 23-Oct-17 20:45:20

I think your buyer is trying to find an excuse to back out.. I have seen this clause (or similar) in many property deeds.

PanicAtTheProperty Tue 24-Oct-17 20:44:17

The main problem for current potential buyer is that he hoped to get planning permission for a loft conversion which has obviously become a lot more complicated and expensive, if at all possible. He offered based on potential he believed it had which it no longer really has to him. So far we've not even had success with getting name and address of the owner from the current tenants of the downstairs property so it's definitely going to be a slow process. Thanks again for your help, we felt really out of our depth and it was so nice of you all to take time to comment and give me such helpful advice

user1487194234 Tue 24-Oct-17 21:07:34

That makes more sense He can't extend into the loft unless he gets exclusive ownership

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