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How to ensure you have the necessary rights of way for your development site

Good sites with development potential are hard to find. They are often complex and their viability may rely on access that is granted by another landowner. Hannah Rosenthal in our Real Estate Development team looks at three examples of the law as it relates to access and provides guidance to help you ensure you have sufficient rights and you are not adversely affected by the rights of others.

A legal right which allows a landowner to use another piece of land for a particular purpose such as a right of way or for services such as gas pipes, is known as an easement. Easements are often benign but a prudent developer will check the details and ensure that the easements in place do not prevent the intended use. The consequences of not doing so can at worst be fatal to the development, with large insurance bills and protracted negotiations often chipping away at the forecasted uplift value.

Case Study 1

The purchaser purchased “Land A” with vacant possession with a view to obtaPropertiesining planning permission for a residential development. An easement reserved a right of way across the middle of the land in favour of an adjacent piece of land (“Land B”) to provide access to a loading bay.

What happened?

The purchaser was able to accommodate the right of way in their design, providing an internal accessway along the same route, avoiding unnecessary costs and negotiating time. 

Thinking points

  • Negative easements may well be identifiable in the title.
  • Early advice combined with good design is often the answer.

Case Study 2

The purchaser of two industrial units (“Land C”) intended to develop the site for residential use. Land C benefited from a registered right of way along an accessway to cross a neighbouring car garage (“Land D”) and the purchaser relied on the right and purchased the land.

What happened?

The right was for “ancillary use to the garage” and as such the easement was insufficient for the proposed scheme.  The accessway was also registered meaning that indemnity insurance was not an option.  The only remaining solution was a time consuming and expensive negotiation with the owner of the accessway.

Thinking points

  • The devil is in the detail and it is crucial that each easement is thoroughly checked.
  • Indemnity insurance can sometimes be an option but insurers will rely on legal advice to assess the risk.
  • Negotiations in this area can be fraught and drawn out.

Case Study 3

The purchaser of “Land E”, seeking to redevelop an old industrial site into residential units, relied on a right of way that specified that it was for “all purposes”.  

What happened?

On the face of it the right of way was sufficient but in the event the purchaser faced a challenge because of the change to residential use and the hindering of the easement by “excessive use”.

Thinking points

  • Even an express easement, which on first reading seems to have no restriction on the purpose of its use, can fall foul of the “excessive user” rule.
  • Factors to be considered include the purpose, nature and frequency of the new use.
  • Case law in this area is particularly complex and early advice should be sought.

Goodman Derrick Real Estate Development

Our compact, multi-disciplinary real estate development team regularly advises on complex developments involving property joint ventures, profit participation agreements and overage arrangements.The team has built up many years of experience and delivers a tailored service that is in tune with the unique pressures that exist in the real estate development sector. Please visit www.gdlaw.co.uk/site/services/business_services/real_estate for more information.

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This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.