intouch

As we mentioned elsewhere in this edition of InTouch, resolving a dispute over a right of way can be a long and contentious process, even for an established property, as this recent claim, settled by our claims team, illustrates.

When our insured, Mr and Mrs B, faced losing income as a result of an escalation of a long-running dispute over access to their holiday let, our claims team faced a long and contentious process to secure a legal right of way to resolve the issue.

We had issued an access policy in June 2015, to cover a substantial Victorian property on the Cornish coast that had no legal right of way over neighbouring private land. To get to the house, Mr and Mrs B would use a lane leading to the front of the property, which was over unregistered land, with no known owner. Given the unchallenged and long use of the access by the previous owners, the planned continued use of the property as a holiday rental, and the additional comfort of the existence of an alternative access that could be explored if necessary, we were happy to cover the risk for the full purchase price of £845,000.

Things go awry

In December 2016, we were notified that a potential dispute had arisen, when Mr and Mrs B were contacted by Mr L, one of the neighbouring property owners, who had recently purchased part of the land that was crossed by the lane that Mr and Mrs B used to access their house. Mr L went on to declare that our insured had no legal right to use the lane, and that he was unhappy with the regular visitors to the house using it as access. He began to cause difficulties, and started approaching the visitors to stop them using the lane. Due to the complaints received, the holiday letting company took Mr and Mrs B’s property off their website, and would no longer take bookings, which led to a significant loss of income for them. In the discussions, Mr L was also able to provide evidence that the lane had not been in continuous use for the last 20 years, which weakened the argument of prescriptive rights applying over the route.

No easy solution

It was clear that this would not be easily resolved with Mr L, so our claims team began to investigate whether any other historic rights existed. It soon became apparent that, with the history and legal complexities of the case, this was easier said than done.

Matters were complicated further, by one of the factors that had initially seemed a comfort to our underwriters – the second access route. This was to the north of the property, and was across neighbouring land owned by Mr and Mrs S. While the legalities of the southern access route were being considered, our claims team contacted Mr and Mrs S to try and secure an easement or right of access. As they had been the previous owners of the insured property, it seemed like it could be a helpful safety net, should negotiations over the southern route prove unsuccessful. But Mr and Mrs S refused, as they felt the current route should continue to be used. In fact, when selling the property to Mr and Mrs B, they had included a covenant stating that access could only be gained over the northern route if a court ruled that there was no access to the south. Attempts to negotiate with both access owners was proving extremely difficult, as neither Mr L nor Mr and Mrs S were prepared to change their position, a situation made more entrenched and contentious by the fact that they were also in litigation with each other over a separate matter. As talks progressed, Mr and Mrs S continued to refuse access over their land, to such an extent that they built a wall over the lane!

Proceedings issued

As these discussions had led to no hint of a solution, our claims team were left with no alternative but to issue proceedings against owners of both the neighbouring properties, Mr L and Mr and Mrs S, to try to establish some legal form of access to the insured property, and avoid it becoming inaccessible. While the southern route across Mr L’s property was still the preferred access and the most likely to be granted, counsel advised proceedings against both.

Before going to court, all parties took part in two rounds of mediation. Following the second session, Mr L agreed to a resolution rather than appear in court, finally granting a legal right of way to the insured property, for £185,000. With the additional legal costs, the total cost of the claim totalled just over £400,000.  Having faced the prospect of losing the full value of the house, which was now worth around £1,000,000, the cost of the policy was a wise investment for Mr and Mrs B. This situation demonstrates precisely how our Access policy can protect buyers of a property – even though the circumstances can, on the face of it, appear to be low risk and ‘money for old rope’.