Easement or Caution

[Bart1664]

We have a cottage which has been on the plot for over 150 years it is accessed via a single gravel track which also goes on to serve two other properties. When we bought the house no owner of the gravel track could be identified and there was nothing in our Deeds regarding access but we do have an insurance indemnity policy to cover the event someone comes out of the woodwork to claim/register the land. However we now want to obtain something a little more formal and looking for some help on what we have read and communicated with Land Registry to ensure we understand it correctly and looking for clarity on what we are entitled to seek:

 

1. Because we can not identify an owner for the gravel track we can only obtain a 'Caution' against first registration of the gravel track?

2. We can obtain an 'Easement' as we have sworn declarations going back 51 years of unhindered access on foot and vehicle?

 

Many thanks in advance

 

[Temp]

To claim full ownership would be very difficult. Typically you have to fence off the land "to the exclusion of all others" for 10/12 years. I believe allowing the owners of the other properties to continue to cross it would preclude this.

 

I believe you are entitled to an easement "by perscription" (use over time). Have a look in here if not already seen. You will most likely need a solicitor withe experience  in this area rather than a general conveyancing solicitor..

 

https://www.gov.uk/government/publications/easements-claimed-by-prescription/practice-guide-52-easements-claimed-by-prescription#:~:text=1.-,How prescriptive easements may be acquired,by lost modern grant

 

[Bart1664]

7 hours ago, Temp said:

To claim full ownership would be very difficult. Typically you have to fence off the land "to the exclusion of all others" for 10/12 years. I believe allowing the owners of the other properties to continue to cross it would preclude this.

 

I believe you are entitled to an easement "by perscription" (use over time). Have a look in here if not already seen. You will most likely need a solicitor withe experience  in this area rather than a general conveyancing solicitor..

 

https://www.gov.uk/government/publications/easements-claimed-by-prescription/practice-guide-52-easements-claimed-by-prescription#:~:text=1.-,How prescriptive easements may be acquired,by lost modern grant

 

Thank you for your reply  'Temp'

 

We have read that document (several times in fact) and a few others on Land Registry and general solicitors web sites where they broadly comment on the subject. We are not seeking to acquire the track for ownership simply obtain a formal right of access in case an owner does surface. So as far as we can tell we fall into this category from the gov web site:

3.4 Burdened land is unregistered

An application for a caution against first registration can be made if the burdened land is unregistered. See practice guide 3: cautions against first registration for information on how to lodge a caution against first registration.

 

because there is no registered owner of the track with LR and none that we can establish locally to tell them we can only request a 'CAUTION' against any first registration that does happen in the future. 

 

The form with LR seems straight forward enough but we are trying to make sure we apply for the correct thing...however, would you suggest that a solicitor with experience in this area would be money well spent instead?

 

 

[Temp]

Personally I would get a solicitor involved or at least find out what they would charge. I've only briefly looked at the application form guidance  but I think some sections like number 10 need the right wording because it goes on the register. My understanding is a caution just means you get notified if someone applies to register the land and its at that point you have to prove your right to whats put in section 10. So I think its important that the right things are claimed? They may also be able to advise if its possible to word the application so that future owners of your property are notified so the caution doesn't have to be changed when/if you sell up.