Houses with no legal access – defective Common Land searches

28 May 2013

About 5% of land in the UK is Common Land. Common Land as all conveyancing solicitors know all too well, is, to quote Wikipedia, "land owned collectively or by one person, but over which other people have certain traditional rights, such as to allow their livestock to graze upon it, to collect firewood, or to cut turf for fuel."

However, where conveyancing solicitors encounter it is in relation to whether or not land fronting a property and over which access is required is either adopted highway land giving automatic rights of way, or in fact Common Land – which is third party land over which the property will need to have a legal right to pass.

Section 193 of the Law of Property Act 1925 makes it an offence for a person without "lawful authority" to drive on certain commons with public rights of access under that Act. And section 34 of the Road Traffic Act 1988 (which reflects provisions first contained in section 14 of the Road Traffic Act 1930), also prohibits driving motor vehicles on any land without lawful authority, except where the vehicle is driven on land within 15 yards of a road for the purpose of parking on that land.

A serious consequence if a home buyer moves in and their conveyancing solicitor has not spotted this intervening Common Land and so the property can be denied vehicular access unless "lawful authority" can be established!

The problem usually comes to light on a sale, as despite the fact that the seller (and their predecessors) has driven across common or similar open land to get to their premises for many years, the more alert conveyancing solicitors then spot that apparently they have no express legal right of vehicular access to their home and they cannot give any guarantee to potential purchasers about vehicular access to the premises.

Indeed, the whole issue of Common Land really came to the forefront of the minds of conveyancing solicitors in 1993 when the Court of Appeal became involved in a dispute. Until1993 it had been thought that if a property had had vehicular access over Common Land for more than 20 years without challenge then they could acquire a legal right to continue access. A Prescriptive Right. However, in 1993 the Court of appeal dismissed this possibility. They concluded that long-user was not "lawful authority". However, after an attempt by Parliament to legislate a solution, the House of Lords in 2004 finally reconfirmed the originally held belief, that where people had driven to their homes over commons or at least 20 years ’as of right’, they had established (by long use, or ‘prescription’) a legal right to continue doing so. The House confirmed that, provided the owner of Common Land could lawfully have granted permission to use the land for vehicular access, there was no bar on a householder relying on their actual use of the land for access, even without the owner’s express permission, to establish a prescriptive right to do so.

As a result, long-user remains a solution, subject to objective evidence. But this is a defensive position, house buyers will want to purchase knowing with certainty whether the land facilitating access is Common Land or not.

Conveyancing solicitors will therefore make a Commons Registration Search via the Local Authority who will confirm if the land is Common Land or not.

Unfortunately, conveyancing solicitors need to understand what they are searching. Searches have been made – and probably continue to be – against the boundaries of the house being bought. A big mistake. What is crucial to search against – being the whole point of the search itself and the risk to the buyer – is the land between the nearest public highway and the boundaries of the house being bought. Conveyancing solicitors may find they have a lucky break as some Councils will reply with a plan showing the nearest common land, but others will provide a yes/no answer, and having searched the wrong land will mean the conveyancing solicitor is misleading their own client, and could face a claim of negligence if the land is Common Land resulting in loss to the client.