Absence of easement indemnity policy

[hooliodancer]

We are almost at the end of the house selling process.

Last Wednesday our buyers solicitor raised a query that our house has no legal right of access to it. We are on a lane that runs behind a road with 2 access points onto the road. There are 11 houses on our lane, all of which use 1 of the 2 access points. As these access points are also used by the public we had always assumed they were public footpaths. Apparently though no one owns this land, so we ( and the other owners) have no legal way of getting to our house.

Our buyers solicitor has td us we need to buy an indemnity policy. We will do this, but he has also said our buyers mortgage provider may refuse to lend, even with the indemnity policy in place.

We now face an agonising wait to find out.

This issue was not raised when we bought. Our estate agent says this is a particularly picky solicitor. All the other houses on the lane have been sold since we bought ours. The 3 neighbours we have spoken to have no indemnity policy in place. All the 11 houses deeds show exactly the same thing.

Has anyone any experience of this please? It's driving me up the wall.

Can you gain a right of way by prescription.

Frankly it should have been spotted by your solicitor when you bought.

I appreciate you've now got an uncomfortable time, waiting to see if your sale's ok. Sympathies.

I bought such a property; my solicitor advised that, with an adequate indemnity policy, it was a bit of a non issue. I believe there's a bit of law, although I don't know details, where if you, or you and previous owners, have used the access for 20 years without any objections, you can have the right to use the access added to your deeds.

Best of luck

Yes you can have a prescriptive right. But you can't have this if you don't know who owns the land you have the right over.

I am a property solicitor. You can have a prescriptive right without knowing who the owner is, it's just a different registration process. However you need to prove at least 20 years use. If you have lived there for less than 20 years you would usually need statutory declarations from previous owners.

Ideally your solicitor who acted for you when you purchased the property should have obtained a statutory declaration from your seller at the time plus advised you about a policy. I say 'ideally' because without looking at the title I cannot say this for definite. Are you using the same solicitor for the sale now? If so raise it with them.

Provided there is a policy in place it is more than likely that your buyers lender will proceed. It is not completely out of the ordinary. Also, I would suggest stop talking to your neighbours about it. If you accidentally make contact with a neighbour who owned the access you would not be able to obtain indemnity insurance and any existing policy may be invalidated.

Picky solicitors may seem like they're a nightmare but they are just doing their job. And just because other solicitors have not picked up on an issue doesn't mean it's not an issue. Also, I find clients memories can be selective so your neighbours may have indemnity policies and just don't know about it/have forgotten about it!

Good luck, fingers crossed and don't panic!

Thanks so much. We have been here 18 years, the people we bought from were here for 3 years. The arrangement has been the same since 1960's which was the last time there was any change to the buildings around us. Before that it was 1910! Our house was built in 1883, so the lane must have existed then.

I'm so grateful you took time to post.

Ok, so after a sleepless night I have a few questions.

Should we try to register a prescriptive right?

We are very close to the wire on the sale, we can't afford to delay too long as we might lose the house we are buying.

Everyone on the lane is in the same boat, if we apply for a prescriptive right would they all have to do it too.

I don't understand how this has happened! The council say they do not own the lane, but there is a gate at the end of it that accesses the allotment site. All allotment users use it to get in. So the council/allotment holders don't have a legal right along the lane either.

As I understand your OP, IF your buyers mortgage provider is ok with the indemnity policy, then you don't need to do anything else, and the potential problem vanishes.
Let's keep fingers crossed.This may well be what happens.

If their mortgage provider won't play ball, then, and only then, there is a problem to be solved.
Maybe, they could appeal the decision?
Maybe, a broker could find them a different provider?
Maybe, you would look at a prescriptive right. Have you tried a quick chat with your solicitor about the costs, mechanism and timescale involved? That would be my first port of call.
Are you using the same solicitor as when you bought the property?
There is only a possibility of a prescriptive right if you can get the cooperation of the previous owners for their statutory declaration. Do you have current contact details for them?

I'm not a lawyer. From what I know about access rights, and land of unknown ownership (more than I ever wanted to,), I would definitely NOT
-Assume anything about the rights of others

• seek to do anything in concert with others

-even unnecessarily speak to others: most of what people assert robustly about their own deeds is often untrue -attempt to sort out the ownership and rights into a whole picture that makes sense,, - because it really doesn't matter what eg. the allotment holders do, why, and whether they have a legal right or not

The only thing to concern yourself with is

1. Is this actually a problemproblem?
2. If so, can it be resolved speedily enough to save this chain?

3.If not, can it be solved in a way that will enable a straightforward sale next time?

Sorry,I've run on.

First thing,ask if buyers mortgage ok with this?
Second, check situation with your solicitor.
Good luck

Whatever you do, don't try and obtain a prescriptive right at this point! And stop talking to neighbours and the council about the issue!

Indemnity insurance policies are so cheap because they work on the basis of there being little chance of anyone ever bothering to do anything about enforcing the defective title (so in your case, the chances of the lane owner turning up and blocking access to your house). So indemnities rely on everyone keeping their heads down. An indemnity can't be taken out if you are in the process of 'regularising' the situation (and if you have one, it would become invalid).

We have an indemnity as part of our driveway is not in our title deeds (previous owners had not noticed but we noticed through looking at google earth so alerted our solicitor when we were buying). The policy is clear that it is invalidated as soon as we approach Land Registry for adverse posession, or mention it to the farmer (whose land we think it is). We actually have a statutory declaration from previous occupants, but while we have the indemnity in place, there's no way we're going to open up that can of worms!

(It wasn't a problem for the mortgage company by the way)

origami warrior Thanks for pointing that out, that's a really important thing to know. You may have saved me from doing exactly the wrong thing in the near future.

@hooliodancer hope you've seen what origamiwarrior pointed out.

As you bought 18 yrs ago that makes sense that your solicitor did not obtain a policy. Back then, solicitors could use a much more common sense approach - i.e. The house was constructed over 100 years ago, the residents have clearly been using the access for over 20 years so a prescriptive right has arisen. Job done. These days, indemnity policies are common place (I often come across properties with 3 or more policies for different risks) and I suspect this is because of the claim culture we live in.

Anyway, in my experience, insurers come back with a quote within 24-48 hours of request. I usually ask 3 companies for quotes. Who is requesting these - the buyer's solicitor or yours? If yours, give them a chase. If theirs, ask the agent or your solicitor to chase them (and maybe for your solicitor to obtain a quote or two themselves). On a completely different risk, I applied for quotes and 6 different insurers refused cover before I found a 7th firm who insured for around £500. So it is possible even where some insurers consider the risk is too high.

I agree with the poster above, stop talking to neighbours and the council and no need to apply for a prescriptive right just yet. I know waiting is so frustrating but from the facts you describe I would put money on a policy being available at a competitive price. And if they don't, I'd be happy to give you a list of insurers your solicitor could try. In my experience they only deal with solicitors and not individuals (no idea on the logic behind this) so there's no use in trying yourself unfortunately. I have my fingers crossed for you. Moving is so stressful.

Op I feel your pain.
We were the buyers in exactly the situation you have described. We had a very thorough solicitor who found that the driveway access to the property was not included in the deeds and was undesignated land. Hence the 'value' of the house was slashed to 1/3 of the agreed price and the mortgage company withdrew their offer.

The sellers bought an indemnity policy pdq and the sale was back up and running a few days later.
Horrible time though for all involved. I can't add anything to pp re helpful legal advice but I can say yes, it happened to us but in our experience it all worked out in the end and we bought the property.
Good luck op, hopefully the sale will be back on soon.

Thanks so much for your useful replies. My mumsnet has been broken for a couple of days, so I am late replying.

I will stop asking neighbours, and will definitely not apply for anything having read this!

We have an indemnity policy ready to go.

I actually think that there was a mistake made on the original plan / conveyance, as what is now the path was originally the front gardens of the houses which are now on the path, you can see that from very old maps. When roads started to be built the addresses changed. I expect whoever drew the plans wasn't as careful as people would be now.

We had a sale fall through in December, and her solicitor didn't even spot it!

@McSleepy, this is a very old thread but I'm hoping you will see this and would be able to send me details of insurance companies to try for absence of easement indemnity insurance - especially that magic 7th company you mentioned in your post. I would be super grateful. Thanks
Robert

Most insurance companies offering this type of policy don't sell them to the general public. If it required as part of a current property transaction speak to your solicitor.

Thanks @mildura:) I’m aware these providers normally only deal with solicitors. Unfortunately my solicitor has tried 3 companies so far and drawn a blank.
That’s why I was interested in @mcSleepy’s post that he had luck at the 7th attempt and was willing to provide a list of insurance companies to try.

Hi Robert - I’ve messaged you.

Thanks @McSleepy for your very speedy and very helpful PM!

I am in this exact situation, but I’m the buyer. Same thing, the lack of access was missed when the vendor bought the property 18 years ago. The vendor refused to pay for an indemnity policy (required by my lender) so I said I’d pay for it.

However, the statutory declaration of uninterrupted access from the seller is a requirement of the policy, and the seller refuses to provide this because their solicitor says “it’s not necessary”. My solicitor believes that the seller’s solicitor is the one who handled my seller’s purchase and that’s why they’re saying the indemnity and stat dec are unnecessary.