Owning a piece of the land in Scotland’s scenic countryside may be the idea of tranquillity for many people -  a large house, breath-taking views, endless garden space and a driveway with room for as many cars as you could wish for, what is there to worry about….

Although you may have owned your property for many years and never experienced any difficulties in the past, problems may arise when you finally decide to sell. The complications may not arise from the land itself but instead from gaining access to the property. A common example of this is a track road off which your property is located, where in order to gain access from the main road, you require to drive along the track road to the entrance. The question that must be asked is whether the track road is maintained by the Local Authority. This can be confirmed by checking with your Local Authority if the road is on the ‘List of Adopted Roads’. If it is, you have nothing to worry about and you should not encounter any problems accessing the property and subsequently when you decide to sell. However, if it is not adopted, there will be some issues to overcome as it is highly likely that any purchasing solicitor will check the status of the access road before completing any transaction.

So, what if your road is not adopted? Firstly, you may have to rely on a Servitude right of access. On examination of your Title Deeds, a right of access may have been conveyed in favour of the owners of your property before you purchased. This would be the case if the owner of the whole land (dominant proprietor) sold the property and in the process, conveyed a right of access over his land to your property. If this is not the case, you may be able to rely on the rules of prescription. The Prescription and Limitation (Scotland) Act 1973 allows the creation of a Servitude through the continuous use of the road for the purposes of accessing your property, for a period of twenty years. The rule of prescription for servitudes over land states that “the servitude has been possessed for a continuous period of twenty years openly, peaceably and without any judicial interruption.” Providing this has been satisfied, the right of access shall be exempt from challenge. In order to rely on this, it is likely the purchasing solicitor would ask for affidavits, swearing to the terms of prescription as evidence that the right will be exempt from challenge.

For a purchaser to ultimately be satisfied that he will purchase a property with access completely exempt from challenge, may require the servitude to be registered in the Land Register of Scotland. However, the Keeper will generally not enter any servitude right of access into the Register unless expressly granted or through declaration of the Court. In this whole process there is no guarantee of acceptance from the Keeper, and this can be a long and expensive process

Should the purchaser not accept affidavits confirming a servitude through prescription, you may possibly remedy the matter by obtaining a Title Insurance Policy. In doing so, you will detail the risk involved (no access) and insure the risk in case during the period of the purchaser’s ownership, the access is challenged. A policy will be in place protecting the purchaser. The policy will almost certainly be more cost effective than attempting to satisfy the Keeper of the Land Register, and although a clear title is not disponed, it protects both parties and all future purchasers of the property.

Access to properties, especially in rural areas, is fundamentally important, and must be checked on purchase - remember, is this road my way or the highway?

Should you have any concerns over access rights, please get in touch your regular contact at James & George Collie in the first instance.