Land purchase/Right of way

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markell50

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Hi there, don't know if I am allowed to do this as I have posted this topic previously on Askaboutlaw without really getting anywhere. Just hoping somebody maybe able to help.
We approached the local farmer 4 yrs ago to see if he had any sites available. He showed us a site and told us he would sell it to us if we obtained planning permission. We were refused a couple of times but eventually got it included in the development zone and obtained planning permission last November. Each time we were refused we went back to the farmer and asked if it was ok to apply again. We renegotiated a price with him and finally succeeded in getting planning permission.
He had given us permission in writing to make the application and also permission to access the site. Throughout this process he continually affirmed that he owned the lane way leading to the site and put it in writing for planning purposes.
We have now received the contract and it states that "he has had long usage right of way and that no further enquiries shall be made in this regard". Our solicitor advises that one cannot have a right of way over ones own land and has advised against signing. We approached the farmer about this and his attitude is very much take it or leave it.
My question is do I have any recourse? Has he misrepresented the facts and induced us into getting planning permission by asserting all along that he owned the laneway?
It appears that the farmer has not reserved a ROW for himself. There are other houses going up the lane way which the farmer sold a number of years ago and did not reserve a ROW. The planning registry maps show that the lane is now split down the middle with the farmer owning one half and the residents on the Boreen owning the other. The lane way has not been taken in charge by the county council. Any help is much appreciated.

 
My question is do I have any recourse?

No. You should have identified this as an issue at a very early stage. Had you consulted your solicitor at an early stage, it is likely that this would have been addressed. Instead, you went at it back to front and have now discovered the title issue.

mf
 
Hi,

I have came acroos this before. if the land owner has been using the lane without complaint for upwards on 20 odd years, there should be no difficulty in a sucessor in title using the roadway also. Most "old boreens" are not in charge of the local authority and the ownership is usally a mish mash of the adjoining fields' owners along the road.Boundaries on maps traditioanally go to the centre of the road, while the pysical boudaries provide for the roadway. One issue would be an easement for any sewage or water pipes from the mains which may not be covered under the heading of "long usage". Good luck
 
The question asked by the OP is whether they have any recourse- agree totally with mf1 on their answer. However what can you do now? Choices:

1. Go ahead and buy regardless, accepting the vendors declaration of long user. If you have a mortgage to build you will need to have your bank accept this as a qualification on title. Generally they will accept this. You WILL have the same issue when or if you sell on.

2. Go and talk to the owners of the road and ask them to grant you a legal right of way. Your solicitor can draft this for you. Put your cards on the table and you may be pleasantly surprised.

3. Lobby the local council to take the road in charge.

4. Walk away.
 
Hi Liars Poker, many thanks for that. On a practical level, there isn't a problem but my solicitor will not certify it as good title. The problem being that the farmer owned the lane-way forever and when he sold the sites going up along the lane way many years ago, he neglected to reserve an express right of way over over now what appears to belong to the people living on the laneway. In essence, I would need to ask these people if I could have a right to go pass their house which would involve them giving me a right of way to go pass each one of their houses, which in turn leads to legal documents being signed. The problem then arises if any of them hold a mortgage, they would need to notify their bank of this. NIGHTMARE! Literally, have I been led up the proverbial garden path? The farmers asurance up to this point that he owned the laneway and signed documents to that effect, appears to me to be a negligent misstatement which in turn has led to me spending a fortune trying to obtain planning permission, not to mention increasing the value of the land. What to do???
 
Hi Vanilla, many thanks for your reply.Everything you say is perfectly correct but hard to walk away after four years of struggle.
Vanilla said:
The question asked by the OP is whether they have any recourse- agree totally with mf1 on their answer. However what can you do now? Choices:

1. Go ahead and buy regardless, accepting the vendors declaration of long user. If you have a mortgage to build you will need to have your bank accept this as a qualification on title. Generally they will accept this. You WILL have the same issue when or if you sell on.

2. Go and talk to the owners of the road and ask them to grant you a legal right of way. Your solicitor can draft this for you. Put your cards on the table and you may be pleasantly surprised.

3. Lobby the local council to take the road in charge.

4. Walk away.
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Three solicitors opinions already ( at least ) and you're still looking for more? There are four options in my post and the choice is yours. You say your solicitor won't certify title but she/he can qualify the title and you can still proceed as above.
 
Many thanks to those who replied to my earlier post. Your information has been most helpful. To Vanilla's reply:
1. We are fortunate enough not to be in a position whereby we need a mortgage and realise that if we went ahead as is, we would have the same problem if we decided to sell
2. It's not as easy as it sounds to obtain a legal right of way from the people who live along the roadway, they in turn would need legal advice on this and if they are in a position where they have a mortgage on their house, this would then need to be registered with their bank
3.As I do not yet own the land, I would not be in a position to lobby the council.
4. Walking away, easier said than done.
Perhaps someone may be able to answer the question, is he guilty of negligent misrepresentation under the tort of Deceit.
A. He led us to believe he owned the laneway
B.He was either reckless or careless as to it's truth
C. He intended us to act upon it,(by getting planning permission and then buying it)
D. We acted on that representation by endevouring and eventually obtaining full planning permission
E. As a result, the damage caused to us is the monies we have spent in obtaing planning permission and the benefit given to him is what once was a green-acre site is now re-zoned as development ground with planning permission for a 2500sq.ft house.
Am I barking up the wrong tree here???I would be most grateful if anyone who has had similar experience or has further advice, could enlighten me. Cheers.
 
The issue is not whether the farmer is "guilty" of anything but rather whether you have been remiss in your actions. I would not advise using your time and energy to pursue the farmer for damages.

Consider the options as offered by earlier posters. Additionally, your post seems to suggest that the farmer owns land on one side of the roadway. Depending on the geography of this you could negotiate for a strip of this to act as your new access.

Finally, I would simply proceed and not worry too much about the legal niceties. Who knows that you don't have right of way? Being realistic your neighbours are unlikely in the extreme to ever know this unless you go making an issue of it. Build bridges with them, get to know them and you'll find yourself with good neighbours and a lot less worry. Don't let your solicitor worry you - the task for him/her is to solve your problems and to give you an assessment as to how likely these are to cause a problem. If he/she can't do that then you should terminate your relationship with them.
 
Hi Orga, thank you for that. As you say, it is probably highly unlikely that this is known to the neighbours. I am fortunate enough to know these people and would have a good relationship with them. My solicitor admits this a legal inertia, and had the problem not been identified, we would be going ahead as we speak. However, as this problem has now emerged, he feels legally obliged not to certify it as good title. Perhaps he is being a bit overprotective, he has been our solicitor for many years and has always sought to do the right thing on our behalf. Is there another way that title may be certified?
As regards seeking damages from the farmer, it would be soul-destroying to to walk away with nothing after so much hard work and money, especially the thought that we wouldn't have our house.
Cheers.
 
Your solicitor is not protecting you, he's protecting himself as if there ever was a "comeback" it would be his neck on the line. You have other options besides using your solicitor to certify the title. You could attempt to take out a mortgage to cover the building of your house. To do that your bank will require that you provide some assurance regarding the title. As an alternative to using your solicitor for this you could explore title insurance http://www.independent.ie/business/...in-favour-of-new-title-insurance-1342927.html

I strongly encourage you not to be put off by your solicitor given the evidence that you want to live in this location. You can instruct your solicitor also to qualify his undertakings but I would only go down this road as a last resort. You should appear resolute in your approach to this matter. You should also casually drop this question when next you meet your solicitor: what happens if I give up on this site and someone else gets it later on and the title issue turns out not to be an issue, would I have comeback against anybody? If his answer is no, no comeback at all or that will nenver happen then you should smile and nod and say "Oh! I see". In a few days you should drop in again/phone and ask if he had received any other opinion in relation to certifying the title and if he hasn't would it be worth doing?
 
OP- you should have had your solicitor check the title before you went to time and expense illustrated above. In my opinion you have no recourse. In your own solicitors opinion you have no recourse. In mf1s opinion you have no recourse. But keep plugging away, in this internet forum you may indeed find some individual who will agree with you- will that opinion of an anonymous poster help you make a decision on pursuing the vendor?

If you have no mortgage then your solicitor is not 'certifying' title to anyone other than you.
 
Hi Vanilla, this was not possible as, believe it or not, the farmer was having problems with his solicitors and subsequently changed solicitors, we are now dealing with them. The only thing we could get from him was affirmation of owning the laneway and a letter stating he owned it and giving us permission to access it. We made seven applications before we received planning permission. Prior to each application we had conversations regarding access, road widths and had site percolation tests carried out. After each refusal, we had an agreement to apply again (which was always done in our name) and if we were successful, we would then purchase the site. We have now obtained planning permission (in our name) and there is now this obstacle. In selling the other sites along the roadway, should he not have reserved an exprees ROW for himself? He contends that he only sold as far as the centre of their boundary walls, yet the maps show half the laneway belonging to the residents. Was he or his engineer/solicitors neglectful in not reserving a ROW?
Vanilla said:
OP- you should have had your solicitor check the title before you went to time and expense illustrated above. In my opinion you have no recourse. In your own solicitors opinion you have no recourse. In mf1s opinion you have no recourse. But keep plugging away, in this internet forum you may indeed find some individual who will agree with you- will that opinion of an anonymous poster help you make a decision on pursuing the vendor?

If you have no mortgage then your solicitor is not 'certifying' title to anyone other than you.
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"But keep plugging away, in this internet forum you may indeed find some individual who will agree with you- will that opinion of an anonymous poster help you make a decision on pursuing the vendor?"

Does no, no and no mean anything?

mf
 
markell50 said:
Hi MF1, are you familiar with the law on Deceit, particularly 'Negligent Misstatement'?
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Not to cut across mf1, but interestingly I had to obtain a barristers opinion on this very subject about two or three years ago. In that
case because of the deceit my clients were induced to enter into a contract. Counsel did feel we had a case but warned that deceit or negligent mistatement is very difficult to prove. We also had written documentation containing the mistatement- you say that you had a letter saying the farmer owned it. But where I think you fall down is the lack of a contract. Plus in my case we had clear cut damages- in yours I don't think you do. But if I were your solicitor, and you were this inflamed about it, I would recommend you obtain counsels opinion based on your particular facts.
 
Vanilla said:
Counsel did feel we had a case but warned that deceit or negligent mistatement is very difficult to prove.
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Completely true and based on the case you outlined you're on a hiding to nothing.

Vanilla said:
We also had written documentation containing the mistatement- you say that you had a letter saying the farmer owned it. But where I think you fall down is the lack of a contract.
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On a small point, there is clear evidence that suggests intention, did a sum of money change hands?

Your error is to pursue this through law. Use common sense.
 
Orga said:
Completely true and based on the case you outlined you're on a hiding to nothing.

Thanks for your candor, very difficult situation to be in.

On a small point, there is clear evidence that suggests intention, did a sum of money change hands?

No money exchanged hands. Is money the only form of consideration that would be looked at here? The expenses incurred were for drawings, planning applications and site tests, which were all done on the basis that the farmer owned the laneway and once planning permission was obtained, we would then purchase.
Click to expand...
 
Orga said:
Completely true and based on the case you outlined you're on a hiding to nothing.



On a small point, there is clear evidence that suggests intention, did a sum of money change hands?

Your error is to pursue this through law. Use common sense.
Click to expand...
Not sure if Orga is a solicitor since normal practice is that money would NOT exchange hands until contracts were signed, and even at that would be held on trust until closing, so you should be careful about taking advice from another anonymous poster with an evident lack of knowledge of the conveyancing process ( as evidenced by other posts above).

You may have paid out money, but not to the farmer which is the relevant issue.
 
Vanilla said:
You may have paid out money, but not to the farmer which is the relevant issue.
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Thanks for that Vanilla. I agree that not all the relevant requirements are there for an enforcable contract. What I'm trying to ascertain is whether relief would lie in Tort. To my mind, a negligent misstatement was made, but for which I would not have undertaken anything.
Perhaps the books I am reading are giving me an 'ideal' of what is available but the reality on the ground is quite different.
 
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