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Disputes between neighbours over a right of way can easily become protracted and contentious affairs. They often arise when one neighbour, for example, makes a change to their property or the way they use the land, which then has an impact on an established access route, as this recent claim illustrates.

Back in June 2002, we issued an access policy to cover an established residential property on a terraced street. It had a garage at the rear, which was accessed by an unadopted lane. Given the unchallenged, long use of the access by the previous owners, and the continued use of the property, we were happy to provide cover for £231 with a policy limit of £110,000. The house was sold again 16 years later, in 2018, and the policy cover automatically transferred to the new owner.

A change of plans

It wasn’t until September 2021, almost 20 years after we had issued the policy, that we were notified of a potential dispute. The current owner and now policyholder was informed that their neighbour was planning to extend their rear garden. Having recently completed an extension to their house, the neighbours were now looking to make changes to their garden, moving the rear fence out to the edge of their property boundary to utilise more of their outdoor space. 

This created a problem for our policyholder, as they had been driving across this area of land to access their garage since buying the property, specifically using it to manoeuvre their car in and out of the garage. The proposed new position of the fence would block access to the garage door, and make it inaccessible by car.

A helping hand

Given the time that had passed since the policy was issued, our claims team initially felt that it should be possible to obtain evidence establishing that the access way across the neighbour’s land had had 20 years of continued use, to claim a prescriptive right of way. Their first step was to contact the previous owners; initial enquiries suggested they had moved to Australia, so the team had to instruct tracing agents to find them. 

Once traced, the former owners were more than happy to assist us, and were able to provide evidence that they used the neighbour’s land to access the garage. Unfortunately however, this wasn’t for their full period of ownership. It was established that they had rented out the property for some of the time, and as the tenants hadn’t used the garage or the access, there were gaps in the evidence, potentially weakening any legal defence. 

No easy solution

While our team was still assessing the strength of the claim, the situation rapidly escalated when the neighbour issued court proceedings of their own. They were seeking a declaration from the court that there was no right of way, and to prevent our policyholder from using their land to access the garage. This unexpected course of events changed the dynamics of the claim, making it more contentious than we had expected, which limited the options for seeking a resolution. We therefore appointed solicitors to act for our policyholder in defending the proceedings.

At this stage, our options were to either settle the claim and pay out for a loss in value, or to continue to defend the claim via the courts. Our team obtained a report assessing the likely reduction in value to the property if vehicular access to the garage at the rear was lost. The estimated loss was £20,000 - a figure which would almost certainly be exceeded by the legal costs of defending the case further. Hoping to find a compromise, an informal meeting was arranged to see if there was any chance of reaching an out-of-court settlement. Frustratingly, although the neighbour had indicated a possible willingness to settle, this ultimately proved unsuccessful. Many attempts were made over several weeks, but a consensus could not be reached – and throughout all this, legal costs were continuing to rise.

The protection of a policy

At this point, it was clear to our claims team that we couldn’t provide sufficient evidence to prove 20 years continued, unchallenged use of the access in court, and that the best decision would be for our policyholder to withdraw from the proceedings. In doing so, we had to agree to meet the other side’s legal fees of £22,000, as well as paying the £20,000 loss in value to the policyholder, along with £57,000 for our own legal and professional fees. 

In total, the cost of the claim came to almost £100,000 – a sum that clearly demonstrates the value of the protection that our cover provides. This case study also shows just how easily access claims can arise, even many years after a policy has been issued, and highlights the benefit of our cover transferring to any successor in title. 

More generally, access cover continues to be one of our most frequently requested policies, and is also the policy that generates the highest number of claims compared to policies sold. This is mainly because the risk of action being taken does not diminish over time, even on established residential properties where it might seem that a legal defence would be available. A change in circumstances – a new neighbour, or a new extension - can easily lead to a dispute arising. 

If you’re dealing with a property transaction where the legal rights of way are either non-existent, or insufficiently clear, contact one of our expert underwriters to see if they can protect your client with a legal indemnity policy. Call 01603 617617, email enquiries@cli.co.uk, or you can get a quote by signing in to Elite, and selecting the Access risk type.