Property rights

 

When buying property it is essential that the buyer finds out that the seller owns the property in its entirety and the property is not subject to any third party rights. When purchasing property, rights that can exist over the land include:

  • Rights of way
  • Mining rights or
  • Whether the property is part owned by another person

Third-party rights

The correct way of finding out whether another has rights over the property you are buying varies depending on whether the land is registered or unregistered.

If the unregistered system applies to the property:

  • Rights that are protected can be capable of registration or incapable of registration, depending on the particular right
  • Failure to register a right capable of registration could mean that right is void against the buyer, even if the buyer knew of the right
  • If the property has a right registered against it, then it will be binding on the buyer

On registered land, whether the right is binding depends on how the right is classified. A buyer should be aware of overriding interests. This means that:

  • Although it does not appear on the register, the buyer could be bound by it even if they did not know about it
  • As a result of this, it is important that a buyer asks the seller about people with rights to the property and an inspection is carried out to check who is living there

Easements

Under the law of property, rights to use land that you don’t own are known as easements. Whether or not an easement exists and how it should be used tend to be frequently disputed in land law.

In property, rights over land can be created and extinguished in a number of different ways. The most common way of creating an easement is expressly and in writing, though easements can also be implied or even gained by prescription.

Gaining an easement by prescription means gaining a right by long and continuous use of that right; for example, gaining a right of way across someone else’s land by regularly using a path across the land for a long time. A claim for a right by prescription can be made under common law - previously decided cases - but it is much simpler to make such a claim under the Prescription Act 1832, where the period of uninterrupted use must be at least twenty years.

For one property to have a right over another property, they must be owned by different people. If the two properties become owned by the same person, it will result in the extinguishment of the right.

Property law also allows easements to be extinguished by express release and implied release. Easements are very important in property law as the enjoyment of property can be seriously inhibited by not having an easement, for example a right of access to your property.

If you are unsure of any of your legal rights or obligations, it is recommended to seek legal advice from a solicitor who specialises in property law. If your dispute has escalated to the litigation stage, see our guidance page on property litigation.

Are you unsure about your rights over a property or access to your property? Contact Law can help you with all manner of property law issues, including easements and boundary disputes. Please call us on 0800 1777 162 or complete the web-form above.

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