Problems found after you bought · No legal right of access
When I bought this property, I didn’t know no legal right of access could hold up a sale or remortgage. Now I’m stuck.
Would you have bought the property if you had known?
If you had known there was no legal right of access before you committed, and understood the problems it could cause when you later came to sell or remortgage, would it have changed your decision?
- Would you have paid the same price?
- Would you have wanted it investigated first?
- Would you have walked away?
If knowing about the problem might have changed what you did, the next question is obvious.
Did you receive the right advice when you bought?
You may not know the answer yet. But if nobody explained the problem, or you are now questioning what you were told at the time, that is worth looking at.
You don’t need to know whether anyone was at fault. Tell us what happened and when you bought. We’ll talk it through with you.
Why no legal right of access can hold up a sale or remortgage
Getting to your home and having a legal right to get to it are different things. Where access crosses land you do not own, there must be a legal basis for using it. That may be an express right recorded in the title, a public highway right or, in some circumstances, a private right arising in another way. A private legal right over someone else’s land is commonly called an easement, and a right of way is one type of easement. The absence of an entry in the register does not by itself prove that no right exists, but it can create uncertainty that must be resolved.
Scope matters as much as existence. A right may allow you on foot but not by vehicle. It may not permit parking, or be limited to a particular purpose, and the route or permitted width may be unclear or inadequate. Rights for pipes, cables and drains are a separate question, dealt with under easements and service rights. The question is not only whether you have a right, but whether it is adequate for the way the property is used.
Long use may, in some circumstances, support a claim to a prescriptive easement, but that depends on the facts and needs advice. It is not something to assume. Requirements differ between lenders.
How the problem usually surfaces
The title says nothing about the path
The way in has been used for years, but the register grants no right over it, and the seller is asked to explain the basis for using it.
No vehicular access
There is a right of way, but it does not clearly extend to vehicles, which matters for a driveway, a garage or deliveries.
A rear access with uncertain status
The rear path is not adopted and is not a public right of way, so the title and other evidence must be checked for a private right.
A neighbour blocks shared access
A gate, parked vehicle or other obstruction exposes uncertainty about the route, width or enforceability of the shared right of way.
The route used does not match the legal route
The title grants access along one route, but the driveway or path used on the ground follows another, leaving part of the practical access without an established right.
A shared drive with limits
The title gives access over a shared drive, but the wording may prohibit parking or obstruction, or limit the route to particular users or purposes.
What you can do about it now
Start with what the title grants: ask your conveyancer what the register and plan record, over what land, for what purpose, on foot or by vehicle, and whether parking is covered.
Where nothing is granted, take advice before approaching the owner of the land, because contact can affect whether insurance remains available. If the access has already been challenged or obstructed, tell your conveyancer immediately: an existing dispute may prevent insurance being obtained or fall outside its cover.
Possible routes include an express deed of grant or, where long use may have created an easement, obtaining statements of truth or statutory declarations and considering an application to register the claimed right. Such an application may be opposed, and long use does not by itself establish a right.
Where a defined title risk remains and the proposed lender’s requirements permit, a lack-of-access indemnity policy may be considered. It responds only to insured loss under its terms: it does not create an easement, prevent someone obstructing the access or guarantee continued practical use. The limit, indexation, successor and lender cover should be checked, because additional cover may be required on a later sale.
If you are selling, your conveyancer can ask the buyer’s solicitor what remains unresolved and whether it arises from the buyer’s lender’s requirements. If you are remortgaging, your conveyancer can check your proposed lender’s requirements directly.
What happened when you bought?
The registered title showed which access rights were recorded when you bought, and a transfer or earlier deed may have contained others. Those documents would not necessarily have established an unregistered easement arising through long use, the precise route used in practice or the basis on which that use occurred. The questions are what was identified, what was asked of the seller, whether anything was put in place, and what you were told.
Several records from the time may matter, and some may survive. The register and plan show what rights were recorded. The transfer or an earlier deed may show what was granted or reserved. The replies your conveyancer received may show whether the seller was asked to explain the basis for using the way in. There may be statements of truth about long use, or an indemnity policy whose limit of cover is worth checking. The lender’s historical written instructions may also be difficult to recover, because they are revised regularly and superseded versions disappear from public view.
Was this property really mortgageable when you bought?
Getting a mortgage when you bought does not necessarily tell you how readily mortgageable the property was across the wider market. There are two historical questions worth asking.
What did your own lender’s written requirements say about rights of access when you bought? And what express requirements did other lenders have recorded at the same time?
Lenders’ written requirements were not necessarily uniform, and their wording changed over time. That means both which lender you used and when you bought can matter.
Lenders set out in writing what they expect a conveyancer to do about particular features of a property. Those instructions are revised regularly, and superseded versions drop out of public view, which can make a question as simple as what was my conveyancer told about rights of access in the year I bought? surprisingly difficult to answer from the sources available today. Lexsure has retained historical lender-specific conveyancing requirements since April 2007, so where the records permit they can help reconstruct what your lender’s requirements said at the time and how that compared with the wider lending market.
The wider picture
Historical lender requirements can help us understand how mortgageable the property was when you bought. The conveyancing file and the advice given to you also matter.
Lexsure holds historical Report on Title material: the reports conveyancers sent to homebuyers, going back years. That material shows the kinds of access issues that were being addressed when firms reported to buyers, and it is a second and separate record from what lenders required.
What the title actually granted
Were you told what right of access the title gave you, over which land, and whether anything was missing?
Whether the scope was checked
Was it established whether the right extended to vehicles, to parking, and to the full route and width needed?
Whether the gap was investigated
Was the seller asked to explain the basis on which the way in had been used, and were you told what answer came back?
The policy and its limit
If an indemnity policy was taken, were you told what it covered, what its limit was, and that it might need topping up on a sale?
Whether the effect on selling was explained
Were you told the position on access would be raised again on a future sale or remortgage, and could matter to a buyer’s lender?
These are examples of issues addressed in historical conveyancing material, not a checklist of what every purchaser should have been told. What mattered in an individual purchase depended on the circumstances and on what was known at the time.
So even if your mortgage completed, or there is nothing unusual in your lender’s historical requirements, it can still be worth talking to us about what happened.
Could this problem have been seen coming?
The relevant starting point is what was known, or could reasonably have been identified, when you bought.
What did the register and plan show? What was asked of the seller? What was in the conveyancing file? What were mortgage lenders requiring at the time? What kinds of access issues were conveyancing firms addressing with homebuyers? And what were you actually told?
Taken together, that can help build a picture of whether the problem you are facing today was already something that should have been considered when you bought.
Did you receive the right advice?
What the historical evidence can tell us
Where the relevant lender and period are covered, we may be able to establish what that lender’s conveyancing requirements said when you bought, and how that compared with the wider record at the time.
- That does not by itself establish that anyone was negligent, or that you have a claim. Those questions need the original file and legal advice.
- The absence of express wording does not establish that the lender accepted the issue.
- What your conveyancer had to tell your lender and what they had to tell you are different questions, and the second depends on the retainer and the circumstances.
Time limits apply, and in some cases the date on which you first knew enough about the problem matters as well as the date you bought, which is why we ask about both. Our full methodology, including how we treat gaps in the record, is set out in the archive and its limits. Where a solicitor later needs formal historical evidence, Lexsure can provide source-evidenced historical lender information.
Sources and review
This page is about rights of access to a property over land belonging to someone else. Where the issue is who maintains a road rather than the right to use it, see unadopted or private road; where the issue is rights for pipes, cables or drains, see easements and service rights. Guidance here about the present problem is general information. It is not legal advice about your property.
Whether long use of a way can give rise to a legal right, and on what conditions, is a question of general law that turns on the facts. This page states no lender requirement as a general rule, because requirements on access differ between lenders and change, and must be reverified at each review.
Historical lender information is drawn from Lexsure’s archive of lender-specific conveyancing requirements, maintained since April 2007. Figures on this page state the population they are drawn from.
What the archive holds
Counts cover substantive changes to lenders' specific requirements in the UK Finance Handbook and elsewhere, covering issues such as no right of access. That requirements changed is a fact about the market, not about your purchase.