Right of way to my property not registered in my name/incompetent solicitor

[MelF]

Am currently trying to sell my old PPR which is accessed by a right of way and has been for the last 35 years although I've only owned the property for 9 years.

A potential buyer queried the legal position of the ROW and as a result I've now discovered that the ROW was originally registered in the name of the original owner 35 years ago and still is. It was never registered to the actual property, only to this original owner. And for some reason, registration of this ROW was never registered to the subsequent owner (the one I bought from) and in addition, my solicitor at the time never investigated this nor transferred the registration to me. I am now left in a position where I have no registered right to this ROW although I am legally allowed to use it due to the time period involved.

However, due to this fact, my potential buyer is no longer interested so I am left with a property that is potentially unsaleable.

Do I have any recourse in that my old solicitor (I don't use him any longer, it was my current solicitor that discovered this) was obliged to check that the ROW access was legally registered to me? At the time, I assumed he'd done all the necessary title checks etc.

Would really appreciate any advice.

 

[Stifster]

Re: Right of way to my property not registered in my name

As a matter of interest have you asked your current solicitor?

A right of way is still a right of way albeit that you have no power to develop it.

Is there any reason the original owner would want to keep the RoW?

It may depend on the maps that were furnished at the time of the sale and to the best of my knowledge a landmark case in the Republic said that both the vendor and the purchasers solicitor had a duty to the purchaser in a case where a couple bought a house which turned out to be landlocked. (No right of way even!)

 

[MelF]

Re: Right of way to my property not registered in my name

Thanks Stifster, the original owner is apparently now deceased. My current solicitor says that my other solicitor should have spotted it but of course we know now that he didn't. There's no issue over the use of the right of way, it's just the fact that it isn't registered to me so it can't be registered to anyone I sell the house to either which in the current market will probably sent most buyers running.

I suppose what I need to know is do I have any comeback now if I can't sell the house because of it?

 

[Stifster]

Re: Right of way to my property not registered in my name

I don't think it is quite as serious as that. I imagine many houses have access by rights of way over land that they don't own (all those in an estate for example).

 

[MelF]

Re: Right of way to my property not registered in my name

Yes, but this is a house on its own with nobody else using the right of way but me (or potential new owners). It's already put off one buyer and according to my current solicitor ROW issues are now potential hot potatoes with most solicitors making sure everything is black and white as if not (according to him) it can be claimed against their indemnity insurance.
So if this is so, do I have a case against my old solicitor? Haven't yet discussed this possiblilty with my current solicitor, just wanted to get another opinion before I consider going down that road.

 

[Stifster]

Re: Right of way to my property not registered in my name

If he or she should have seen that there was a problem with access and if that failure is going to lead to legitimate problems in selling (as opposed to someone looking for an excuse to pull out) then you would have an arguable case.

 

[juke]

Re: Right of way to my property not registered in my name

Litigation not being my forte, Sfister.... is any cause of action not statute barred after 6 years?

 

[Stifster]

Re: Right of way to my property not registered in my name

No, I think the time runs from when the mistake was discovered.

 

[Vanilla]

Re: Right of way to my property not registered in my name

I don't really see why a purchaser would be put off by this. Actually I dont really understand exactly how the right of way didnt pass to the successors in title but presume it was personal to the original purchaser? Or subsequent conveyances didnt mention the right of way? In any case if you really feel there is a problem can you approach the owner of the land on which the right of way is on and ask them to give a written grant of row now?

 

[MelF]

Re: Right of way to my property not registered in my name

I don't really see why a purchaser would be put off by this. Actually I dont really understand exactly how the right of way didnt pass to the successors in title but presume it was personal to the original purchaser? Or subsequent conveyances didnt mention the right of way?

This seems to be what happened, and as things stand we only have right of way because of the time elapsed, and not by legal registration. The prospective buyer's solicitor made the point that the registration of the ROW cannot be transferred to the new buyer so legally he doesn't have a ROW until after the statutory time period has elapsed.

Re, approaching the owner of the land (it's a vacant site) to grant a right of way now, unfortunately they are not v approachable, to say the least and it's v unlikely they would grant this - just to be awkward if nothing else....

I'm now planning to write to my old solicitor, and ask him to clarify the wording on the Land Registry, as it does appear that the right was originally granted to a person and not the property. Will be anxious to see what he makes of it.

 

[Stifster]

Re: Right of way to my property not registered in my name

I believe that if you and your predecessors in title have had a right of way by necessity (as in this case it is not by way of a grant) then a future purchaser can benefit from the years that you and the previous owners used the RoW.

The problem is that that is fine until someone decides to block off the RoW and the owner has to go to court to prove their right. It is a messy situation.

 

[MelF]

Re: Right of way to my property not registered in my name

Thanks for all your advice Stifster. As I said, I'm writing to my old solicitor today and including all the land registry documentation etc. On the land registry's copy of the original grant of right of way, it states that it is granted 'to Name, registered owner of the property at folio X, and his heirs and assignees.....' etc.

By my own reading of it, the existence of the comma after his name could signify that any registered owner of the property is granted the same right, but unfortunately I'm no expert.....

 

[MelF]

Re: Right of way to my property not registered in my name

Just an update on this, went to see my new solicitor this morning and discovered that not only did my previous solicitor not deal with the right of way issue outlined above when I bought the property, he also failed to raise the issue that there were two illegal buildings on site, one a granny flat conversion, and another a large outbuilding which was used as a workshop/office.
I now have to apply for retention on these buildings and if I don't get it, this will affect my sale price not to mention the nightmare of having to get all of this sorted before I can sell the house.

Can't believe my old solicitor was so incompetent. I paid the guy 1% of the sale price at the time and took it for granted that he would look after my interests. Instead I've been left with a minefield of issues.

And to make it worse my new solicitor thinks there is 'no point' in taking the old one to task about it!

 

[Vanilla]

You must also take some responsibility for this yourself= did you inform your solicitor the property was accessed by a row, did you inform them there were extensions? Did you have an engineer inspect? They should also have picked up on the illegal structures.The Vendor should have answered questions in a document called Objections and Requisitions on Title which include a specific question asking whether the property was serviced by a ROW and whether there are any illegal structures. Find out first what the answers given were before you condemn the previous solicitor.Do you have a right of action against the previous solicitor or the vendor? Certainly if there was fraud involved- if they answered those documents wrongly, then there is no time limit on this. Most of the time in relation to a negligence action the time limit is six years, but there are exceptions. If you are at a loss because of this then you should explore the above first.In relation to both illegal structures it is not necessary to apply for retention although it is preferable. Most experienced conveyancing solicitors would not necessarily baulk at this given the time involved and would deal with it by way of a qualification on the title. Still it is definitely a flaw on the title and I wouldnt be very happy in your situation either

 

[MOB]

'to Name, registered owner of the property at folio X, and his heirs and assignees.....' etc.

It seems to me entirely possible that you do not have the r.o.w. problem that you think you have. If there is a right of way registered in favour of ...." Mr. A, the registered owner of the property at Folio X, his heirs and assigns" and if you are now the owner of Folio X, nothing more is required for you to be able to benefit from the registered right of way. It is perfectly normal for rights of way to be registered in this form. A right of way normally runs with the title -that is to say, it accrues to the land, rather than to the individual who happens to own the land at a particular time. The wording you have recited is the wording used in these circumstances by the Land Registry. In short, things look fine.

[Expression of Doubt:- if I am reading the thing correctly, then your new solicitor should be able to understand this and should not be saying there is a problem. If your new solicitor is saying that the registration of the right of way should be in some way updated to show your name on the registered right of way, then he\she is simply wrong, and the error is so elementary as to give further cause for worry]

 

[Stifster]

'to Name, registered owner of the property at folio X, and his heirs and assignees.....' etc.

It seems to me entirely possible that you do not have the r.o.w. problem that you think you have. If there is a right of way registered in favour of ...." Mr. A, the registered owner of the property at Folio X, his heirs and assigns" and if you are now the owner of Folio X, nothing more is required for you to be able to benefit from the registered right of way. It is perfectly normal for rights of way to be registered in this form. A right of way normally runs with the title -that is to say, it accrues to the land, rather than to the individual who happens to own the land at a particular time. The wording you have recited is the wording used in these circumstances by the Land Registry. In short, things look fine.

[Expression of Doubt:- if I am reading the thing correctly, then your new solicitor should be able to understand this and should not be saying there is a problem. If your new solicitor is saying that the registration of the right of way should be in some way updated to show your name on the registered right of way, then he\she is simply wrong, and the error is so elementary as to give further cause for worry]

I thought that too, the one thing that was missing though was "successors in Title", so i thought that maybe if it wasn't actually assigned, then the OP might not have it. I was assuming the new solcitor was a conveyancer unlike myself!

I agree with Vanilla, I don't think the original solicitor could be responsible if he wasn't made aware of the illegal use.

 

[MelF]

Interesting that I would have to have pointed out that the buildings might be illegal at the time, for some reason I assumed such things were evident from the land registry docs so yes, I suppose I do have to take responsibility too, but to be honest I assumed it was the solicitors job to check such things.

Re the wording of the right of way, yes my new solicitor thinks that it could be argued out if/when it comes up in a contracts situation, but he'd rather have it registered on title now so that any sale process could go more smoothly. It's more a case of preventing the question mark altogether.

Thanks for your advice guys,