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Rights for a property owner to use another person’s land do not always appear on title deeds, but a buyer of the land may nevertheless purchase subject to them.

In a recent case, a vicar asserted his own and others’ rights to use the drive of a house as an access route to and from a rural church.

The drive was part of a property that had been sold off by the churchwardens in 2012. The property’s title deeds made no reference to any right of way over the drive and the existence of it was not apparent, even on careful inspection.

The new vicar argued there was an established legal right (called an easement) that permitted him and others to use the drive for church purposes. Clergy, undertakers and families placing flowers on graves, among others, claimed to have used the drive for more than 20 years prior to the sale in 2012.

The Upper Tribunal rejected the argument the drive’s occasional use for church purposes over the years was insufficient to give rise to an easement; whilst never frequent, the use was a matter of routine during the relevant period and the land was subject to the claimed rights of way.

We always advise clients to inspect carefully any property they are buying for evidence of legal rights that may exist – for example, access ways – but it seems that even such inspections may not reveal all existing rights. In this unusual case, it may be that the house owner has a claim against his seller for non-disclosure, but that will depend on circumstances not reported in the decision.

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