Problems creating an easement

[KTM Neil]

We are currently building a detached property on land which was originally part of the garden of our house which we still own, Access to the new dwelling is to be via a shared drive which will remain on the title of the original house. We need to create an easement for right of access across it. The original title has already been split into two seperate titles via solicitors,land registry etc. The issue we have is that the mortgage company require these easements to be in place to release the money which we now are in desperate need of as the roof is due to go on next week and our personal funds are now low.  Our solicitor is advising us that we cant create an easement from ourselves (myself & wife) to ourselves as both our names are on both titles, you cannot be the dominant tenement and servient tenement. There recommendation is to remove one of us from the current houses title/mortgage and then we can create the easements, This seems bizarre to me and will take time that we really do not have at this stage, I have spent hours online searching for an answer to which i cannot find and desperately hoping of a way to appease the new mortgage company. Should we decide to sell either property then this will not be an issue as the easement would be created with the new purchaser and ourselves.

 

Hoping someone else on here has dealt with this issue and has an easier faster solution for us. Had the solicitor who split the original title informed us of this we would not have put both our names on the new title created.

 

Thanks Neil

Edited July 15, 2017 by KTM Neil
typo

[Nickfromwales]

Hi, and welcome . 

Replies will soon follow so just keep an eye on the thread. @Temp will be amongst the crowd I expect.  

[KTM Neil]

Thanks Nick, I have been browsing this site for a while now, seen a lot of good advice given out. 

[Nickfromwales]

Aye, there's a good crowd on here, and amazingly diverse too. Take a seat . 

[PeterW]

Hi Neil

 

Welcome to the forum..!

 

I'm not quite sure where your solicitor is heading as creating easements at the point of title is normal practice and its the title that gains the easement, not the person... The issue is where the owner and occupier are the same, not the owner is the same. You may be best off talking to the mortgage company and advising them that you cannot legally create the easement unless they would like to take occupation of the new property as a tenant, and then you would have the ability to become the owner only and at that point the easement can be registered.

 

 

[KTM Neil]

Thanks Peter for your reply, Please forgive my ignorance in this matter, My understanding of your reply is that if i was to say rent the land out and become the owner only then i can create an easement, Im thinking rent it to a family member for say two weeks with the necessary contract etc and in that time create the easement.

 

Neil

[PeterW]

I'm assuming you are looking to sell the main house..? Is the mortgage on the new property and is that the one you are having an issue with..? If so, the mortgage company may have an issue with that as you will effectively have nowhere to live. I'd suggest your first port of call is the mortgage company and explain that in (English..?) law you can't create what they want as you own and reside in both properties.

[KTM Neil]

no we will be keeping the existing property (we currenly live in it) and will be renting it out once the new build is completed (i know not ideal to live next door to your tenant) and moving into the new house, yes the mortgage we are having issues with is on the house we are building, we have the offer etc but the solicitor has advised us of that before all the boxes can be ticked we need to create the easement. i will call them on monday and discuss this. Our solicitor advised us to not contact them yet as it may start alarm bells ringing, I have no idea why, All is above board and im sure they have dealt with it a thousand times as its a specialised self build mortgage provider!.

 

Thanks for your input

[Ferdinand]

@KTM Neil

 

Ask the question in the first post to the Land Registry on the phone. 0300 006 0411 They are helpful when it comes to understanding procedures and limitations.

 

If necessary you can make an appointment at your local office.

 

And/Or get an opinion from a second solicitor ... ask your LOCALLY owned Estate Agent's Principal for a recommendation of an alternative good specialist one. They should say whether they can help within the brief consultation they will do to determine your need. This should I think be a common process even if slightly differently achieved in the the experience of a relevantly specialist solicitor, and such should have text they used previously ... ask.

 

An experienced specialist conveyancer may also be able to help.

 

The LR also have Practice Guides .. this one may be guide 62 - Easements, but it is intended for pros and to this layman tonight it reads rather as if It could be in Chinese. So I would start with the above.

 

The guide is here for completeness

https://www.gov.uk/government/publications/easements/practice-guide-62-easements

 

Ferdinand

 

 

 

Edited July 16, 2017 by Ferdinand

[ProDave]

I would turn this around.

 

Presumably you are going to sell the original house?  If so at the time of sale, you retain ownership of the access strip, and grant an easment to the purchaser of the old house so they can use it.

[Nickfromwales]

3 hours ago, ProDave said:

I would turn this around.

 

Presumably you are going to sell the original house?  If so at the time of sale, you retain ownership of the access strip, and grant an easment to the purchaser of the old house so they can use it.

Original house getting kept and rented . 

[ProDave]

1 hour ago, Nickfromwales said:

Original house getting kept and rented . 

So no need to actually split the title and sort out the easment issue at all at the moment?

 

If the easment issue is too much, how about just making the access strip jointly owned between the two properties?

[Ferdinand]

3 hours ago, ProDave said:

So no need to actually split the title and sort out the easment issue at all at the moment?

 

If the easment issue is too much, how about just making the access strip jointly owned between the two properties?

 

"The issue we have is that the mortgage company require these easements to be in place to release the money which we now are in desperate need of as the roof is due to go on next week and our personal funds are now low."

Edited July 16, 2017 by Ferdinand

[Temp]

Wikipedia says..

https://en.wikipedia.org/wiki/Easements_in_English_law

 

An easement can not be recognised where it the dominant and servient tenement are under common ownership.

but it goes on to say..

However, rights may be recognised as 'quasi-easements', which can then be implied as full easements upon the conveyance of the land in question.[8]

so perhaps ask your solicitor about that reference 8 (Thompson, p. 500).

 

 

[Temp]

I think the answer is to point out to the mortgage company that because you own both plots you already have a 'quasi-easement' and that the law only allows you to convert that to a full easement when one plot is sold. 

 

Perhaps ask your solicitor if it's possible to formalise this in some way? Perhaps by inserting a covenant in the deeds of the old house requiring the owner (currently you) to grant an easement if that was ever sold? 

 

Edited July 16, 2017 by Temp