Search for common ground over easement

Property sales in some areas are being affected by inflated fees for access across council land, as Roger Pearson reveals.

A practice which is affecting the sale of top residential properties that can only be accessed via common land is set to undergo a major challenge in court.

Frustrated homeowners in Surrey, led by Woking estate agents Waterfall Durrant and Barclay are seeking counsel's opinion on the matter which is likely to have nationwide implications.

They are challenging the right of local authorities to demand easement fees ranging from u5,000 up to u100,000 in respect of access to their properties.

They claim that Surrey County Council in particular is guilty of blatant profiteering following a court decision six years ago.

The demand for such fees only arises when the owners of the properties attempt to sell them. Many owners have come and gone for years without any hindrance from the common owners, whether they are private owners or local authorities.

However, since a signpost Appeal Court decision in the 1993 case of Hanning v Top Deck, building societies and solicitors have been unwilling to accept an established but unofficial practice of access as sufficient for their purposes and have demanded proper proof of easements as a condition of sales going ahead.

It was held in Hanning v Top Deck that an easement could not be acquired by conduct prohibited by public statute.

Since the problem arose, common owners in some parts of the country have provided the required easements for administration fees. Others have not, however, and one of the areas where the cash demands are highest seems to be Surrey.

John Durrant, the partner in Waterfall Durrant and Barclay who is spearheading the current battle, says Surrey County Council has in the past charged as much as 10 per cent of the purchase price of properties and still does in the case of top end of the market sales.

On a u1m sale, the owner could face an added u100,000 bill to make a property saleable. At the lower end of the market, the council has cut the percentages to be-tween 1.25 and 5 per cent.

With even a modest cottage with frontage onto a common in the area, an owner can still be faced with an extra bill of thousands of pounds.

Woking Borough Council is another authority in the area seemingly cashing in with similar "ransom" demands. It charges 5 per cent.

Durrant says that he is far from convinced that the Hanning v Top Deck decision really has the effect that is being attributed to it as far as private properties are concerned.

He says that he considers there are various aspects of the ruling in need of clarification.

"Hanning v Top Deck was a case which involved stopping commercial vehicles using common land. But in that case they had only been doing it since 1965," he says.

"The situation we have here is entirely different. Many of the property owners involved have been in occupation for upwards of 70 years."