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While there are hundreds of different types of legal indemnities to cover the many complexities that arise during a property transaction, access cover for private rights of way continues to be one of the most frequently requested policies, and is the policy that creates the highest number of claims when compared to policies sold, largely because the risk of action against our insured does not diminish over time.

Buyers generally assume that accessing their new property will be easy enough, but many are surprised to discover that the simple act of getting to it is not always straightforward from a legal perspective.

Understandably, it can feel very personal when a homeowner has to fight for access rights to their property. These cases can result in a difficult and drawn-out legal process, and even if it doesn’t end up in court, it can be challenging to convince the owner of the access to formally grant a right of way on their land. They can demand a significant sum to document the rights required, even if the owner of an established property is able to prove there has been at least 20 years use of the access.

Development risks can be more complex still, especially where there is an unknown owner of the access who could later appear and frustrate or prevent the development going ahead.

Why choose insurance?
An access policy is often the quickest way to resolve any queries raised during the sale, rather than attempt to resolve ‘the defect’ by approaching the owner of the access to try and acquire the legal rights required. Such a process can be time consuming, costly and uncertain, and not only delay the transaction and chain as a whole, but potentially scupper it altogether.

Even if rights have been granted, they can sometimes be unclear or inadequate for the existing or proposed use of the property. Old coloured plans in the original deeds highlighting the access may have become lost or illegible. Or the position ‘on the ground’ may have been changed compared to when the rights were granted. The legal ownership of shared access drives in particular, and rights of way in general, can become convoluted over the years, as titles transfer, owners change, plots gain additional land or some is sold off. An informal, or verbal, agreement with one owner may be assumed as a right by successive owners, can also cause problems when it is belatedly discovered as not being legally valid.

Our case study looks at a dispute on a prominent property that had enjoyed established and continued use of an access for many years, but which still resulted in a long-running, six-figure claim.

Assessing the risk
If you send us an access enquiry for an existing property with a continued use, there are three key questions we’ll ask you, but what is the underwriting rationale behind them?

1. Has the access been unobstructed and believed to have been in use 'as of right' for at least the last 12 months?
The longer the access has been used without dispute, the better the position our claims team will be in should they need to either defend the claim or alternatively, enter negotiations with the access owner to acquire the legal right of way for a reasonable sum.

It’s also important that the use has been ‘as of right’ and unobstructed (i.e. openly and without consent or force). For instance, if the owner of the access has given your client permission to use it, and subsequently revokes permission, there is no likelihood of acquiring a prescriptive easement and little chance of successfully negotiating an agreement. It could even weaken the Insured’s position in any claim.

2. Has the property been used for the same purpose for the last 12 months?
If the property has only just changed use, such as from a single dwelling to a House in Multiple Occupation (HMO) or to a commercial property for instance, this will likely change the manner in which, or how often, the access is used. This increases the risk that the owner of the access will seek to prevent use. Consequently, for our cheapest Access premiums to apply, we expect the use of the property to be fairly established.

3. Has there been contact with anyone who may own the access?
Contact with the owner is likely to highlight to them that your client doesn’t have a legal right (or has insufficient rights) to keep using the access. It raises the possibility that they’ll either demand payment to grant the legal rights of way required, or even seek to prevent use. While legal indemnity insurance is an effective alternative to attempting to rectify the legal defect itself, it is important for our underwriters to establish that contact has not already been made with the access owner to avoid becoming involved in the middle of an existing dispute.

Going above and beyond
But don’t think a ‘wrong’ answer to any of these questions means we won’t offer cover! Even if contact has been made with the access owner, we may still be able to offer cover. But these questions simply help our underwriters identify areas that might need further investigation.

We often conduct our own research into your enquiries. When you send us an access enquiry, if needs be, we’ll refer to index map searches and examine the local area to establish if there is a known or registered owner of an access way.

This is of particular importance with an enquiry for a new build, or a development site on a pre-planning basis. We’ll also look for any relevant objections received for previous planning applications, and if the access has been used prior to the development.

If your property transaction features uncertain access rights, contact one of our expert underwriters to see if they can protect your client with a legal indemnity policy. You can speak to them on 01603 617617, email enquiries@cli.co.uk, or get a quote from Elite.