Case study: Absence of Easement

The case

The Insured bought a property. At the time, an Absence of Easement policy was issued in relation to pedestrian and vehicular access at the rear of the property. The access was over a lane behind adjoining properties and then crossing over a neighbour’s garden to the Insured’s rear garden. The previous owner had used this access since the 70s, but there was no express right of access referred to on the title deeds.

The claim arose because the Insured’s neighbour installed a fence with a gate along the boundary of their rear garden, which blocked the access to the Insured’s rear garden.

How we helped

We instructed our panel solicitors to review the claim. As the previous owner had used the access since the 70s, a prescriptive right of access had been acquired through long use. Our solicitors contacted the neighbour to outline the Insured’s legal right to use the access and ask that the gate be removed. In response, the neighbour offered a key to their gate so that the Insured could use the access.

This was a reasonable resolution because the gate and fence were intended to provide security to the rear of their property, and the provision of a key meant that the Insured could continue to use the access without any interference. A Court was not likely to require the removal of the gate in these circumstances.

Although this was acceptable, it was still important to ensure that by accepting the key, it was not deemed as a means of ‘permission’ for the Insured to use the access. 

Therefore, our solicitors clearly outlined the Insured’s legal rights whilst accepting the key to the gate, and this position was acknowledged by the neighbour.

The Insured was concerned that the imposition of a gate may have reduced the value of his property. We therefore also arranged a valuation report. To determine whether this outcome had any impact on the value of their property. It was confirmed that there was no loss in value.

The outcome

The policy covered the total legal costs for dealing with the obstruction and resolving the access issues. The instruction of our panel solicitors meant that the matter was swiftly resolved, and the neighbour acknowledged the Insured’s right of way over the access.

We paid approximately £12,000 of legal costs in resolving the matter, which includes the cost of obtaining a valuation report.

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