rights of way

[KarlosKKrinkelbeim]

We are currently trying to buy a very nice house access to which is over a shared drive. The right of way over the drive itself is clearly on the title, but the last portion of the access is over land belonging to the neighbouring property and is expressed as a right of way to "the garage." The garage itself is pretty rickety and DH and I would probably like to take it down, and perhaps replace it.
the sellers are prepared to make a statutory declaration to the effect that the right of way has been enjoyed to the property itself and not merely the garage. they have lived there 20 years plus.
What I'm not clear on, and I've struggled to get my solicitor to explain, is the effect of the statutory decalration. in the event of a problem, what rights does it give us? I would prefer to have the title itself amended, but I am told this is not possible without the co-operation of the person who owns the land which the access goes over.
If any MN'ers have expertise or experience in this area, I'd love to hear views. I realise the first piece of advice would be "get a solicitor who will do a better job" so we can take that as read!

Did your solicitor mention anything about ''prescriptive easement''? Have a google of this phrase.

Basically what this means is that if you can show that the owner of the other property has acquiesced in letting people who have owned your new house cross his property for the last 20 years then you have the right to carry on doing it and he can't stop you.

It is possible to get this registered with the Land Registry, however you might want to have a chat with your new neighbours before doing this - you wouldn't want to get their backs up for no reason.

If they don't agree then you can still go ahead and make an application anyway. If you have the evidence then it will be granted and recorded on both the title to their land and also yours.

However, I would suggest that this is one way to really wind up your new neighbours. Essentially, just keep this for if you ever have any access arguments with your neighbours.

Also, check with the original deeds from when the house was first sold as there may be something in there that gives a legal easement anyway if, for example, the house was built in the grounds of another.

Forgot to say - this only applies if the other person's house is freehold. If they own it on something like a 999 year lease then you cannot get a prescriptive easement

Take a look at our online Practice Guide 52 re prescriptive easements as mentioned by nickymanchester
www.landregistry.gov.uk/professional/guides/practice-guide-52

20 years is often the minimum period required to acquire a prescriptive easement. The guide explains this and more e.g. what may happen if it is not registered but do bear in mind that the guide is written for property professionals in mind as the area of the law covering such matters can be quite specialist/complex.

Checking old deeds may be an option as well although I suspect no mention is made on either property as a stat dec may not have been offered. Your solicitor should be able to advise on that though.

Can I also point you in the direction of GardenLaw as they have a forum on anything from boundaries to trees etc and one for Rights or Way (referred to as ROW)

GardenLaw

It just might give you an idea of issues you could have in the future, ie lovely neighbour nice, he moves an you get an arse of a neighbour who blocks your right of way.

The sellers have a right of way as they have been using it for years. They have enjoyed the right. It would be usual for them to register the right with the land registry so that the right is with whoever owns the house. The seller's solicitor and your solicitor should be able to sort this out easily.