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We live in the Borough of Bromley, and have to access our property…

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We live in the Borough...
We live in the Borough of Bromley, and have to access our property along an unmade and un-adopted road, although it is owned by the London Borough of Bromley apparently.
When we purchased it 13 years ago we were told that we needed a license to be able to drive across this track to our property. We were confused, but accepted it in order not to jeopardise our purchase. We paid £750 for a 10-year license. The council are now attempting to renew the license at a cost of £350 per annum, but have also offered to issue a Deed of Easement in-perpetuity at a cost of £22,0000 plus costs! They have based this amount on two facts: 1. the property was built after 1930 (it was), and 2. It's value is more than £1,100,000 (it is). We share the track with 4 neighbours who do not have to pay anything as they have 'Prescriptive Rights' over the track.
Is this all fair? Is it standard procedure? Are their charges in-keeping with normal Deed of Easement charges? Can we fight the council on this?
Submitted: 8 years ago.Category: UK Law
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Answered in 5 minutes by:
6/21/2010
Solicitor: Joshua, Lawyer replied 8 years ago
Joshua
Joshua, Lawyer
Category: UK Law
Satisfied Customers: 26,167
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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What did your solicitor advise you when you purchased the property?
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Customer reply replied 8 years ago

It was 13 years ago, but he did advise that we paid for the license at the time in order to complete the purchase without any hold-ups. We could have paid annually or a 10-year license, which is what we did.

We cannot remember what options we had at the time.

We accept that we need to do something as the council won't let it drop, but we cannot accept a charge of £22,000, and cannot understand why we are the only one's out of 5 tenants who have to pay. We did the right thing when we purchased the property, but now feel we are being penalised for that. Our neighbours, who have been accessing the track without the Landlord's consent, are getting away with it.

We have no argument with our neighbours, but cannot understand why we should be penalised alone. We just want the council to be fair and reasonable with their charges, and want to know how far we can push them monaterily. What is the norm in these situations?

Solicitor: Joshua, Lawyer replied 8 years ago
Th difficulty you find yourselves in is that from what you say, they neighbours appear to have been using the track without any formal agreement from the landowner (the Council). If you exercise a right without secrecy and without consent of the landowner you acquire after 20 years a precriptive right to do so.

Unfortunately what you have done is enter into a licence which does two things - 1) stops the closk running from the point of view of acquiring prescriptive rights and 2) binds you to the terms and conditions of the licence re notice period etc to stop access.

This is a very serious situation as access issues can have a very major impact on the value of your property. A property without access is worth much less that what it is worth with access. The council could ask for more than what they are asking for. You should also bear in mind resale of the property. Many people are going to be unable to buy the property with only a licence in place because they will struggle to obtain mortgage funding - the question of "what happens if the Council withdraw the licence" arises.

I believe you may have ben badly advised by your solicitor when you purchased the property in so far as the practical consequences and ramfications of accepting a licence where not adequately explained to you. You have 6 years from when you discovered the consequences to isue proceedings againt your solicitor should you wish to do so. If you delay beyond this you will be statute barred from taking action.

In terms of what you can do. First check the road is not adopted highway (unlikely but worth checking) and that there is no public right of way along the same. Assuming this does not assist, you could ascertain if you could establish a prescriptive right by discussing with neighbours and previous owners of the property. If prevous owners used the track for a period of 20 consecutive years without the council's consent, you may be able to establish a prescriptive right of your own.

The only remaining option otherwise is to enter into further licences or to colcude the deed of easement. THe question of money for the easement is largely down to negotiation I am afraid.
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