Should we proceed with this house purchase?

[Deckie]

We are in the process of purchasing a property on an unadopted road and we are due to exchange contracts in a few weeks. The conveyancing solicitor has just found out that there is no legal right of access along the road because it is private land and the owner is unknown because the land is unregistered. He explained that the unknown owner would be within his rights to put a padlocked gate across the road, albeit very unlikely.

I would imagine that when the land was sold off into several plots for development in the mid 1980s, the road itself was left behind and nobody thought about granting legal access (or maybe didn't think it would be necessary). A public bridleway runs along the road but it's illegal to drive along a bridleway without the owner's permission, even if the owner is unknown.

The main issue is that the solicitor is of the opinion that no lender will offer a mortgage on a property with legal issues with access, and that when we come to sell the property it can only be sold to a cash buyer (assuming one is willing to take it on). I asked some mortgage lenders about it but couldn't get a definitive answer. The solicitor will be asking the vendors to take out an indemnity policy but this only covers unforeseen costs and it obviously won't help with the access issue and future mortgages.

The solicitor advises that a deed of easement would need to be put in place by the courts to overcome this issue which would be an extremely expensive and lengthy process and may not be possible if the owner of the land is unknown.

Can anyone see any way round this or do you think it's just a storm in a teacup?

Don't buy. You cannot sell it.

Even if you could find a cash buyer, why would they want to take on that same risk? Your resale market is vanishingly small.

Thanks blueshoes. We’re thinking that there haven’t been any issues with access over the past 40 years and we can’t believe that all the other houses on the road (about 16) have only ever been cash purchases since they were built. We don’t want to make any rash decisions and lose the property for the wrong reasons. Maybe the vendors should pay or contribute towards a deed of easement or something, assuming it is as necessary for a mortgage as the solicitor says. I don’t know, maybe someone does.

Don't walk, run away from it. We were in a similar situation 7 years ago and lost lots of money walking away from it but are so relieved we did. The house still hasn't sold. Our solicitor said that even if we were cash buyers he would not recommend to buy it. I also currently know of another house in similar situation at the moment and 2 sales have fallen through already on it because of access.

He sounds like a very good solicitor who is concerned for your best interests. If you aren’t in a rush I would let the vendor sort out the easement! They aren’t going to be able to sell to someone else either I wouldn’t have thought

We’re thinking that there haven’t been any issues with access over the past 40 years and we can’t believe that all the other houses on the road (about 16) have only ever been cash purchases since they were built.

Check on nethouseprices how recently those houses were bought and sold. If there has hardly been any buy/sales activity in those houses over the years, there is your answer.

Thanks Beyondbeliefsometimes, that is an option that we are considering after all other avenues have been explored.

No way.

Do not buy.

Me and DH bought a property with a land issue unbeknown as our conveyancing solicitor didn't pick it up. We lost over £100k when we sold it

Thanks Janedoe82, we would mention that but it would mean a very long wait which the rest of the property chain won’t be willing to sit out. We thought about asking them to pay for the easement and pursue it after we’ve moved in but there would be risks of course.

Apparently, section 31 of the Highways Act 1980 states that a highway can be deemed to be dedicated as a public right of way if the public has made continuous use of the highway as a right for at least 20 years without any complaints from the landowner. Maybe this needs looking into.

Thanks that’s a great idea blueshoes. I did a check on Zoopla of sale histories of other properties in the road and they all appear to be average. About 7 years between sales on average, selling between 6 and 9 months. They can’t all be cash purchases. As you say, from this it doesn’t look as though there’s a problem.

It looks like you are trying to talk yourself into buying.

It might be fine if you are able to find another buyer who takes your relaxed attitude but if there is a problem, it will be a big, expensive and potentially insurmountable one.

If it is cheap it is cheap for a reason. If it not, then more fool you.

Sorry, but your solicitor has tried to warn you already and he is acting in your interests.

The solicitor advises that a deed of easement would need to be put in place by the courts to overcome this issue which would be an extremely expensive and lengthy process and may not be possible if the owner of the land is unknown.

Your solicitor has already advised that you have to go to court to put the deed of easement in place by the courts and this is an extremely expensive and lengthy process and may not be possible if the owner of the land is unknown.

The easement route is not a realistic option on your time scales if it is an option at all. If you don't want to break the chain, you will either damn the torpedoes and proceed or walk away from this property and find another one pdq.

We walked away from something similar, but with a lot more mixed messaging around the ownership of the road. The story kept changing but ultimately it was what you described.

We got a lot of stick from the estate agent (and our solicitor actually) for walking away but it was the right thing.

The house was sold back then (for less than our offer) and after a few years, has been marketed without success a couple of times. Even during the crazy pandemic market it didn’t sell.

I’m glad we walked away. We eventually bought a far more sensible house which served us well. Good luck!

Ultimately is it worth the risk? I'd do as PP suggested and get the current vendor to sort it out

Nothing to say about the marketability of such a house, but:

1. You have the right to drive vehicles on a bridleway.
2. after 20 years continuous use the property will have acquired a prescriptive right of way on foot or by vehicle.

Could the vendor sort insurance to cover this?

When were the other houses built? Good idea to check the number of sales but I'm finding it hard to believe that the below doesn't now apply:

1. after 20 years continuous use the property will have acquired a prescriptive right of way on foot or by vehicle.

It's kind of weird your solicitor didn't mention this though. I'd put this to them and see what they say, if there is some way to get more detail/verify this which could be worth assessing.

"You have the right to drive vehicles on a bridleway."

Just a small point, but I'm not entirely sure that is correct.

You can certainly ride a horse or a bicycle on a bridleway but not a motor vehicle. Section 34 Road Traffic Act 1988.

I'm not a land lawyer. But I wonder if the current owners can claim a prescriptive easement and register the benefit of this on the title to the house? The prescriptive easement would be to traverse the road on the land marked red (ie the road on the unregistered land) at all times and for all purposes whether by foot or in vehicles. The logic for this is that they have been doing it for a long time without right, without secrecy, and without opposition from the owner of the road, thus the law recognises that the right of free passage has crystallised and becomes enforceable as of right.

www.gov.uk/government/publications/easements-claimed-by-prescription/practice-guide-52-easements-claimed-by-prescription

Your lawyer sounds crap by the way. Bad lawyers identify and dwell on problems with lots of handwringing. Good lawyers identify problems and offer potential solutions.

But her solicitor did just this. They identified the problem and said a deed of easement needs to be obtained.

I think I would walk away, sounds like the type of issue that probably won't cause a problem but could be extremely costly if it does.
Not worth the risk.

Many thanks for all the responses, they are very useful.

To answer the queries…
Yes the vendor will be asked to take out an indemnity policy if we decide to go ahead but it doesn’t overcome the access issue nor will it satisfy the mortgage lenders.

There are acts in place (1832 and 1980) that say after 20 years continuous use without opposition the road will have acquired a prescriptive right of way but as far as I can tell, it’s not automatic you would need to make an application which could incur significant costs.

We are rather doubtful about the solicitor as he has already backtracked in writing following information I supplied him. Also that he said in writing that the access issue can’t be resolved without knowing who the landowner is which isn’t true. He never mentioned anything about the above acts, I’m doing further research before I speak to him again. Frankly, I have more confidence in legal advice from ChatGPT, it’s always fast, relevant, comprehensive and easy to read (no legalese).

I agree with Another2Cats, it’s illegal to drive on a bridleway without permission. In this case, the bridleway is an unadopted, officially named road that appears on maps.

The estate agent is doing her best to investigate the matter and is looking to see how many properties on the road are mortgaged. She says she is 99% sure there isn’t an issue.

Purchase histories on Zoopla don’t indicate any problems or protracted timescales.

In view of the above and despite the advice, we are reluctant to withdraw from the purchase at this stage. It’s unlikely we’ll ever find anything as good (a four bedroom detached property in the country, a short walk from a town with over an acre of landscaped wrap around garden with an area of the original ancient woodland). Also, at our stage in life the next move (if there is one) is likely to be into sheltered accommodation or a care home. We have no dependants so it won’t matter that much if it’s necessary to reduce the price to sell.

I would knock in the doors of some of the neighbours, the ones who have bought there most recently, and ask how they navigated the situation.

Some solicitors are more persnickety than others...

If I were you I might try to speak to one or more of the neighbours- to see how they overcame the problem
doesn’t feel as if you have anything to lose
it could turn out that it’s more of an issue than you realise and that nobody else’s solicitor raised it
things are never an issue until they become one

Thanks, asking the neighbours directly is a good idea.