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Legal Update: Purchasing Land, ‘Right of Way’ Access & Property Disputes

It goes without saying that anybody looking to purchase land should seek legal advice, but a recent court case also shows the importance of ensuring that the solicitors you use have specialist experience in property law and ‘right of way’ legislation.

The court case in question (Baker v Craggs) is explained in more detail below, but in essence arose because of an unforeseen delay between Mr Craggs purchasing a parcel of land and officially registering himself as new owner with the Land Registry. In the intervening period the seller (Mr Baker) sold an adjoining parcel of land to somebody else. This second parcel of land included a ‘right of way’ access through the land purchased by Mr Craggs. However he was never made aware of this as he was still not listed as the official owner with the Land Registry.

The outcome was a lengthy and costly legal dispute between all three parties in relation to whether the right of way access was enforceable or not. Initially the court ruled against Mr Craggs, but on appeal this was overturned because he had taken physical occupation of the land. This minor technical point worked in his favour, but he might not have been so fortunate had the land not been immediately occupiable, e.g. if intended for agriculture or future development.

Else Solicitors have extensive experience and expertise in both commercial property and property disputes (including ‘right of way’ and boundary disputes). For an informal chat please contact Andy Rudkin, Partner and Head of Dispute Resolution at Else Solicitors, on 01283 526239 or via email at andy.rudkin@elselaw.co.uk

 

Baker vs Craggs: Case summary

Mr Craggs originally purchased a parcel of land from Mr Baker, and his solicitor rightly applied for him to become the new registered owner.  However, a small issue in respect of the plan enclosed with the application resulted in a delay, and ultimately the Land Registry cancelled his application when he failed to rectify the issue within a specific timeframe.  A second application to register the land to Mr Craggs duly followed.

In the meantime, Mr Baker had also entered into an agreement to sell an additional parcel of land to Mr and Mrs Charlton.  The transfer of land to Mr and Mrs Charlton purported to include a right of way over the area of land previously sold to Mr Craggs (but which at this point had not been registered in his name with the Land Registry).  As such, the right of way over the land now owned by Mr Craggs (but not registered) was granted without his knowledge. Mr Craggs naturally objected to this right of way over his land, and took the case to Court.

Initially the Court found in favour of Mr and Mrs Charlton, and that the right of way was capable of being granted to them and registered to their benefit.  Mr Craggs then took the decision to the Court of Appeal where is was overturned (ironically on a minor technical point and not for the reasons that many landowners might envisage).

The reasoning provided by the Court was based upon the fact that despite Mr Craggs having not been formally registered as the land owner, he had taken physical and actual occupation of the land.  In those circumstances, the fact the registration process had not been completed was irrelevant as his occupation of the land created an overriding interest to which the Charltons’ could not take priority.  This the Court determined satisfied what was intended within the Law of Property Act 1925 in respect of registrable interests and estates in land.

The case highlighted an important issue that if Mr Craggs had not in fact have taken physical occupation of the land (which may of course happen in respect of development or agricultural land), then the right of way could have been found in favour of the third party and Mr Craggs’ newly purchased land could in certain circumstances have been subject to the right of way despite him having been entirely unaware of it.

In light of the decision made by the Court, some landowners may find themselves in situations where the delay in the registration of them as the legal owner could result in rights of way or potentially other registrable interests being recorded against their land unless they take immediate occupation on the date of purchase, as a result of a legal principle called ‘overreaching’.

Purchasers of development land or agricultural land to which occupation may not be taken immediately are therefore at risk of such rights being entered against their land without their knowledge or consent if there is a delay for any reason in the registration process.

Andy Rudkin, Head of Dispute Resolution commented: “This case re-emphasises that in certain situations a land purchaser can be vulnerable to dealings with the plot in question before the registration process is complete, but has re-affirmed the widely held views as to the meaning of The Law of Property Act 1925 in respect of overreaching.  Land owners must be vigilant at all times however to ensure easements, such as a right of way are not obtained over their land post purchase.”

If you have any question or queries in respect of land purchases, rights of way or any property disputes then please contact Andy Rudkin, Head of Dispute Resolution at Else Solicitors on 01283 526239 or andy.rudkin@elselaw.co.uk.