Property and Law Practice
(21 marks) – Title investigation + CPSE replies + LLC1 extract (Freehold Property)
Issues
A) THE RIGHT OF WAY NOT BEING ADEQUATE FOR THE BUYER’S PROPOSALS
- Spotting the right of way on the Property Register (entry 2 generally)
- Discussing all four aspects of the right of way (adequacy, maintenance obligations,
adoption by the local authority, checking the registration of the right on the
neighbouring land) with specific reference to the detail of the right given in the title and
the buyer’s plans (e.g. the fact it was on foot and bicycles but the buyer wanted
vehicular access meant it was not adequate for the buyer and so the owner of the
burdened land needed to be found and approached with a view to entering into a Deed
of Variation).
1.1 Consider entry 2 of the Property Register. Why is the right of way over Beaufort Lane
particularly significant for Elton Hall?
The property has the benefit of a right of way to and from Elton Hall over Beaufort Lane - the
land which is shown hatched black on the filed plan. This allows access to the property from
Phoenix Road via Beaufort Lane. Beaufort Lane is the ONLY means of access to Elton Hall, so it is
essential that you are satisfied that the right of way on the Property Register is sufficient for
RPL’s needs so that RPL can fully enjoy its ownership of the property. If the owners of Elton Hall
did not have the benefit of a right of way over Beaufort Lane, or if the right was defective, the
property would run the risk of being landlocked.
1.2 (Public Highway) Why would you not find a right of way in the Property Register for most
properties?
Most properties abut the public highway. Therefore, the owners of such properties are able to
access their properties without having to cross anyone else’s land. That being the case, for such
properties there is no need for a private right of way.
1.3 (Private/Public Road) Read reply 1.6 to the CPSE’s (Document 51 – page 108) and enquiries
2.1(a) to (d) of the CON 29 search (Documents 52/53 – page 125 (for Boxes B and C) and page
131 (for 2.1(a) to (d))).
What type of roads are the following: (a) Phoenix Road and (b) Beaufort Lane? Why is this
information significant to RPL?
The Seller states in reply to CPSE 1.6 (Document 51) that Beaufort Lane is a private road, but
this needs to be verified by the local authority. Enquiry 2.1(a) of the CON 29 search (which is
one of the ‘local authority searches’) seeks to clarify whether the roads, footways and
footpaths named in boxes B and C of the CON 29 (Document 52) (Phoenix Road and Beaufort
Lane) are public highways – i.e. roads maintainable by the local authority at the public’s
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, expense. The reply to 2.1(a) is “Phoenix Road” meaning that Phoenix Road is a public highway.
You are now able to conclude that because Beaufort Lane was omitted from this reply, Beaufort
Lane is, indeed, a private road as the seller had represented in reply to CPSE 1.6.
Enquiries 2.1(b) to (d) of the CON 29 search seek to clarify whether any private road named in
boxes B and C of the CON 29 is due to be adopted by the local authority, and if so:
who will be responsible for making up the private road to the standard of public highway; and
who, ultimately, will pay for such works (e.g. kerbing, tarmacking, street lighting etc).
Note: You would also always undertake a Highways Search to identify the exact boundary
between the public highway (Phoenix Road) and private land. If, as in the case of Elton Hall, the
road used to access the property is not a public highway, then a right of way over the privately
owned access road will be required, which is why we see the right of way in the Property
Register.
Adequacy
RPL still needs to establish that the terms of the right of way are adequate for its needs: i.e.
that it can access Elton Hall via Beaufort Lane:
at the times it wants (day and night, hours of use - i.e. 9am to 6pm);
by all means of access it requires (e.g. by motor vehicle as well as on
foot);
free from any other unacceptable restrictions or conditions; and
physically adequate in terms of its size, location and construction.
The right of way in the Elton Hall Property Register is, fortunately, free of restrictions both in
terms of when it can be used (‘day or night’) and the means of access (‘with or without
vehicles’)*.
Its physical adequacy must also be considered: is Beaufort Lane wide enough and strong
enough to support the types of vehicles which will be driving to and from Elton Hall? It is likely
that RPL’s staff would travel to Elton Hall by large vehicles such as coaches, buses and people
carriers, so RPL should consider taking advice from its surveyor as to the suitability of Beaufort
Lane in its current state for such traffic.
If the right of way is inadequate for its purposes you will need to negotiate a deed of variation
with the owner of the land burdened by the right of way (e.g. if Beaufort Lane needs to be
widened), RPL would need to negotiate a deed of variation of the easement with the owner of
Beaufort Lane. RPL is likely to have to pay the owner of the burdened land consideration for
any such deed of variation as well as their legal costs. In addition, there is no guarantee that the
owner of Beaufort Lane would agree to a deed of variation on terms that are acceptable to RPL.
Therefore, if from RPL’s perspective, the need for a deed of variation is a ‘deal-breaker’, RPL
would need to secure a binding commitment from the owner of Beaufort Lane to grant any
deed of variation before RPL exchanges contracts with the seller of Elton Hall.
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