Land Registry declaration of rights of way rule 254

[Helcatt]

We are buying a property that has a declaration (from 1995) that the property benefits from access marked on a title deed type map/plan. I've been told that I should get the current seller to do another declaration to 'upgrade' this right. Is this correct/necessary?

I'd also like to add another 'access' to the property that comes across unregistered land if possible. Can I just add this to the new declaration (if I'm doing one)?

Finally, do I need a solicitor for this or can I produce the map/declaration myself and have the seller get it signed and witnessed and send it to Land Registry? I can see the wording etc., needed on the old declaration...

[buildersmate]

Your question is to do with rights of way (easements) claimed by prescription. The simple explanation to that is, when you have been using a right of way over someone else's land for a certain length of time [over 20 years, normally] you can claim an easement over it. There are other rules, but that is the simple gist of it.
To be able to register this easement at the LR, the LR has to be satisfied that the owner of the land that you are claiming the right over (the burdened land) does not disagree. To be able to do that, the LR has to contact the owner.
In situations where there is no registered owner of the land / the owner cannot be identified, the LR can't do that, so it permits you to make the wording pursuant to Rule 254 that you are making this claim and it sits as a note.

Armed with that info you should now be able to see that you can't just go claiming another right of way in another place - not without making a truthful declaration that you've been using that route in secret, without permission etc. for over twenty years - which you haven't.

As to getting the current seller to 'upgrade' the existing claimed easement, I'm not aware that this is necessary. Who has told you this and why aren't you asking your conveyancer?

Since the existing title of the land you are buying has already satisfied the LR that the conditions for a prescriptive right have been satisfied and the only issue is there is no identifiable owner of the burdened land, I don't see why this is required.

[Helcatt]

Thankyou Buildersmate - it's great to have that explained in plain English! Just so I'm clear - the seller has been in the property for 17 years and has regularly used all three rights of way/accesses (they all lead to different roads/directions), but for that 'note' to be entered on the Title Deed (with the annexed declaration) by the previous owner to him the first two at least have gone as far as they can, if you will - if you get what I mean?!
The third access (that I'd like to add) has been used for a few hundred years we think! No one has ever registered it and maybe it doesn't need to be registered but it is useful and since it crosses an unregistered piece of land in between two pieces of land owned by the same title I'd like to make sure they don't chose to block it off at some point in the future - so maybe it's only worth doing that one, but then the seller's only been there 17 years...

[Helcatt]

Oh yes - who has told me this - my conveyancer! But I get told lots of stuff and I rarely take it at face value. Thought I'd seek a second opinion!

[themas]

bm will no doubt correct me if I'm wrong, but it seems that you only have 17 years proof in relation to the third access route - unless you can track down the previous owner.

You clearly need a declaration from your seller in relation to that access; you may then have to go on using it for another 3 years before you can register it.

If the other two accesses are already registered I can't see the point of another declaration, but if you need the seller to do one for the third access it's probably not much extra work/cost to get him to confirm them as well.

[buildersmate]

Yup, Themas has sussed it correctly - you would be advised to extract a Statement of Truth or a Statutory Declaration from the seller at this time, to demonstrate the 17 years continuous use of the 'new' access that you want - then in 3 more years you can go back to the LR with another ST of our own, which coupled with the document you acquire now gives you the magic 20 years.

You seem like a bright guy; have a read of the LR Practice Guide 52 here - it explains all.
http://www.landregist...des/practice-guide-52

Statutory Declarations have to be done in front of a commissioner for oaths, which costs; more recently the LR have allowed STs to be used - these are simpler and don't require witnessing by someone who is going to charge you for the privilege, so is much preferred. LR mention the use of their own form ST4 which I have found does the job adequately.

Obviously you don't want to be informing the owner of the land on either side of the 'barren' strip what is going on - the owner at any point up to the 20 year grant could chop you off at the knees and cut this access to you.