Right of way

[yobanfa]

I'm trying to sell my house which has a lane going up to it, which crosses a bit of forestry land, we have lived there since 1976 so we have got right of way. The buyer wants us to get a easement over the forestry land, what is a easement? And do I need one?

[echokilo]

Here is the definition of easement - and if the buyers wants it then you will porbably need to do it. Although the RoW is now set due to years and years of going unchallenged, most buys would want the easement for peace of mind. It may cross forrestry land now, but things can change and an easement protests the buyers right of access.

[echokilo]

http://legal-dictiona...ctionary.com/easement

[yobanfa]

We have asked our solicitor if we needed one and was told no as we have proof that we have got right of way, it's the buyers solicitors saying we need one

[askyourgran]

Have you checked your deeds? We have a right of way to cross a path leading to the back of our houses. It is outlined on our plans and stated on our deeds. If not, you would be advised to see a solicitor, as echokilo says, the easement, which is a right of way across someone elses land will make it legally safe for the future.

[askyourgran]

Sorry didn't see your reply above yobanfa. If you have proof of rights of way have you informed the buyers' solicitor?

[yobanfa]

Yes we have told the buyers solicitors and all he keeps saying is he needs the easement, the house has been here since about the 1960s

[woofgang]

But what proof have you got? Just proving that you have lived there for the requisite amount of time and have been using the land for that time wouldn't be enough for me as a buyer either. I would want it legally registered and written proof that it had been accepted by the Forestry commission.

[FredPuli43]

Surprising that there wasn't a formal agreement to the easement when the house was built; builders don't like building houses with no access to them, if this is the only access; which would be shown on the original conveyance and repeated in each subsequent conveyance and in the registration of the land. If this is the only access, there would definitely be a presumption of an easement and no formal record would be necessary, but the buyer's solicitors are calling the shots here and acting out of abundant caution, so you'd best get one, in the absence of one being recorded before.

[themas]

So the access lane to your house has been in use since the 1960s & crosses some forestry land? I find it extraordinary if nothing has been done before to formalise this. Your solicitor says you have proof of right of way. What does this consist of, & is it registered at the Land Registry? If it is not, then something needs to be done.

Look at this thread:
http://www.theanswerb.../Question1184056.html

The circumstances are different but the principle may apply, & it might be quicker/cheaper etc. than negotiating an easement document with the owner of the land.

It is really a matter for your solicitor to sort out with the buyer's. So long as your right is registered I cannot see the need for anything else.

[buildersmate]

If you have been using this lane without formal permission, openly, for over 20 years you may well have acquired a private right of access by prescription. This reference is to the Prescription Act 1832 that established this principle in England and Wales (not sure about Scotland).

There is a procedure that your solicitor needs to follow to register this at the Land Registry - rather worrying that he/she seems to to recognise this.

[cassa333]

Any (even half rubbish) buyers solicitor would want a proper row on the deeds.

Easment or prescriptive row if I were buying a house I would want the dots and ts sorted before purchase.

Forget what your solicitor says about what is needed. If you want to sell do what the buyers want otherwise you loose a sale.