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There are many potential problems associated with private rights of way, which explains why access cover is one of our most frequently requested policies. And disputes caused by regularly using someone else’s land, where there are insufficient legal rights to do so, make claims on these policies one of the most common that we handle too. Reaching a satisfactory outcome for all parties requires experience and expertise - and as this recent case study shows, plenty of patience and some luck too!

A garden with potential

In April 2020, we were contacted by solicitors seeking an access policy. Their client had secured planning permission for a backland development, using a segment of land from the garden of an existing house to build a large, two-storey detached residence. The only access to the new property, and to the site during construction, would be via a private lane located on unregistered land. The lane itself was used by the residents of neighbouring properties to access their back gardens, and as the only access route to a nearby social club car park.  

Our underwriting team reviewed the planning permission that had been granted and were able to confirm that no relevant objections to the development had been made. We ascertained that no works were going to be carried out to the access way, and that it was openly used by numerous parties, on a regular basis, without any issues. As no one had come forward claiming ownership of the unregistered access, and there was no apparent owner known locally, we were happy to provide cover for £950 with a policy limit of £800,000.

A nasty surprise

Almost 18 months later, in October 2021, we were contacted by our policyholder, who had received a letter from a third party organisation claiming ownership of the lane. They had become aware of the planned development and the intention to use the lane as access to the site, and pointed out that there was no legal easement in place to do so. The potential owner of the land confirmed that they were having similar discussions with the owners of another neighbouring property about using the land, and warned of the lengthy process that would need to be followed in order for them to grant the necessary rights to use the access. Concerned by the tone of the communication, our policyholder got in touch with our claims team.

After reviewing the letter, the first step our team took was to instruct solicitors to act on behalf of our policyholder. The priority at this stage was to definitively establish whether the unregistered lane was in the third party’s ownership. If that proved to be the case, the next step would be to see what terms would be acceptable to grant an easement.

In response to our request, the third party were able to supply evidence that they were the registered freeholders of land abutting the lane to the south. They also held an unregistered deed from 1900 that covered a larger area of land, but it was not conclusive that this included the lane itself. We consulted a plans specialist to review the documents, who confirmed the strength of the third party’s claim, concluding that if they applied to register the lane, given the deed from 1900, they would most likely be successful.

No easy solution 

As there was no alternative route for the access, and no other legal defence available to our policyholder, it was clear that the only viable course of action was to negotiate with the suspected owner of the access way. The conveyancing plan from the 1900 conveyance appeared to show the lane at the edge of their land, but it was so old that there were very few reference points to enable this to be confirmed with the use of modern plans. Crucially, there was potentially enough margin for error to argue that this was not conclusive proof of ownership and that the lane was not included in the deed they held. With this in mind, our solicitors opened negotiations with an offer of £10,000.

Progress was painfully slow. Over the next ten months, the negotiations continued, but very little progress was made. One of the major sticking points was agreeing the value of the land and what financial impact the legal right of way would have, if an easement was granted. Each side produced their own report, but these conflicting valuations meant it was also impossible to agree any figure for obtaining an easement. Another obstacle was that when an offer was finally made, it was for a 'determinable easement', which could be terminated by the owners with just six months’ notice. This was obviously not a satisfactory solution for our policyholder, as it would render the proposed property both un-mortgageable and unsaleable. At this point, the claim was stuck in a stalemate.

Light at the end of the tunnel

There seemed little prospect of a successful resolution to this claim, especially once we discovered that the access had been successfully registered with absolute freehold title, conclusively proving the third-party’s ownership and weakening our position in any negotiations. And yet, out of the blue their response changed. All of a sudden, they were prepared to grant a permanent easement, which came as a total surprise to our team.

The value of the land, with and without planning, had been contested throughout the negotiations. The access rights would undoubtedly add substantial value, which we expected the landowner to indirectly want a significant share of, as payment for the legal rights. Based on our analysis of the valuation of the garden land, now with both planning permission to build the property and with permanent access rights, we offered a payment of £72,500 for the easement as an opening figure, anticipating further negotiations to agree the final settlement figure. We were also mindful that they would likely be looking for a figure that reflected an overall financial benefit for them, and which also covered their own internal operational and transactional costs. But our team were again pleasantly surprised when the offer was accepted, subject to the addition of their legal costs, which were a further £14,500. An agreement had finally been reached, and a new deed was drawn up, giving the plot full rights of way in perpetuity.

In the end, it took four years to successfully resolve the claim, and the total cost was just over £87,000, which itself shows the value of our cover. In addition to the financial support, the policyholder was also incredibly grateful to have had the benefit of our team’s advice, as well as their support, throughout such a long-running dispute. Their experience and expertise to evaluate options, and to appoint specialist legal advisors and consultants ensured our policyholder was in the strongest position during a drawn-out and uncertain process.