Shared laneways - why do they pose issues?
Shared laneways are a common feature throughout Northern Ireland and are particularly prevalent in rural settings.
As time has progressed, shared access ways are becoming more frequent. This is largely as a result of the construction of new properties or where part of an existing property is subdivided to create two separate properties.
However, shared laneways are often fraught with legal issues. This article identifies some of the main problems that can arise with a shared laneway and how these may be resolved.
Most, if not all, laneways (particularly in rural settings) will be privately owned. If you are seeking to purchase a property, and use of a shared laneway is required to access same, the first step will be to identify ownership of the lane. It may be the case, in some instances, that a laneway may be transferred, and included, as part of your property in which case one will acquire ownership of the laneway and you will not have to worry about acquiring certain access rights. If this was the case, then it would be important to establish if other parties have any rights in place to use this laneway and legally access their property.
If it transpires during due diligence that the laneway will be owned by another party, then one will require a formal right of way easement to use the laneway in question to access the property. The criteria to establish an easement is set out in the case of Re Ellenborough Park (1956) Ch 131.
It is important to establish that such rights are in place prior to any acquisition as the omission of a formal right of way easement will result in the property being “landlocked”. This essentially means that the property is legally inaccessible.
Thorough due diligence must be undertaken prior to the purchase of a property that avails of a shared laneway, to ensure the appropriate rights are in place.
Right by Prescription
It is possible to acquire a right of way over lands by a doctrine called prescription. Prescription derives from an underlying principle of land law that exercising a right for a long period of time without interference should be capable of legitimisation. For example, if one is able to establish uninterrupted use of a shared laneway for a continuous period of 20 years, then you would have a strong claim for a prescriptive right over a laneway, or any access for that matter.
Acquiring rights by prescription though is complicated and, quite often, these claims are the subject of lengthy and adversarial litigation procedures as evidenced in the case of McLean v McAuley (Personal Representative of McAuley (Dec’d)) .
Maintenance obligations are, undoubtedly, one of the main reasons why shared laneways can cause issues and disputes. The owner of a private laneway will be primarily responsible for looking after and maintaining this access to ensure it remains in a good state of repair. Where this private laneway is shared by, say, two or three additional parties and these additional parties have the benefit of right of way easements, then such entities, depending on the drafting of the Grant of Easement/Covenant, should be obligated to keep the shared access in a good state of repair. Any such grant or covenant will normally be caveated though so that any party, which has the benefit of an easement in these circumstances, will not be required to put the shared laneway in any better state than that which they found it.
In a scenario where there are a large number of users of a shared laneway and there is, as a consequence, a high volume of traffic using this access, then it is good practice to have a maintenance agreement in place which may include a provision for a reserve/sinking fund. This would be an arrangement whereby each of the respective users of this shared laneway would contribute financially to this fund. Should any repairs have to be undertaken, then this pot may be utilised to pay for any maintenance or repair works necessary to fix the laneway access.
Whilst outside of our remit as solicitors, we often encounter scenarios whereby mortgage providers are very reluctant to lend large sums of money to finance any prospective acquisition of a property which avails of a shared laneway access unless it is formally and fully documented. This is largely down to the adverse issues that could potentially arise as noted in this article.
However, we, as solicitors, do not provide independent mortgage advice and it is important to speak to a mortgage adviser to ascertain lending capabilities specific to your circumstances.”
If you would like further information or have questions, please contact Neil McCracken.
**This information is for guidance purposes only and does not constitute, nor should be regarded, as a substitute for taking legal advice that is tailored to your circumstances.