Selling house to Local Authority: "Right of Way" not marked up to LA's satisfaction

Hi All

I would be grateful for any advice because i am out of options.

I am currently selling my house to the Local Council and it has been trouble all the way.

The problem lies with this a letter that my Solicitor recieved:

"If the roads and services are not in charge, then the Solicitor acting for the Purchaser must ensure that they will have a right of way over the roadways that are not public roadways which lead to the property being sold and that there are easements in place for the services.

In your case, the easements are in place for the services but the Deed of Transfer refers to a Right of Way over a roadway marked yellow which was never marked yellow on the Map attached to the Deed of Transfer and the Land Registry advise that they do not concern themselves with marking Rights of Way in developments so we can not obtain a Map from the Land Registry which shows the Right of Way.

The error arose when your husband purchased the property as a Map showing the route of the Right of Way does not appear to have been furnished on closing or if it was furnished, it was not lodged with the Land Registry."

The Council are taking over the estate in a couple of months .

The Original builder does not have a map as it was 20 years ago, any help on what to do....

Re: Land Registry Problem

This is a common enough occurrence in conveyancing and usually arises from a lack of diligence on the part of both the purchaser's and the vendor's original solicitors - unless the map simply fell out of the foli when it was being physically moved one day, which is less likely.

I once had to redesign the location of a car park entrance into an apartment building because an original ROW had never bene correctly trasferred or extinguished and it went back 200 years.

The first option is to formally request the original builder - who I presume owned the land and may still own the ROW until the Council taking-in-charge-is effected - to write a sworn document confirming the position generally in relation to houses in the estate: it should include a map from an architect, chartered engineer, chartered surveyor or other competent person, signed by them, showing the ROW.

This document could be of benefit to many others in the estate beside yourself.

This seems to be a relatively minor point in a public estate with open road access. I would be surprised if rights of way had not been created by the constant year-round access to all the houses.

A second option may be for several persons to take legal advice and swear statements confirmin they each have enjoyed this right of way without let of hindrance over the years.

A third option may be to discuss with the Council what assurances they have received from the builder that he owns the roads he is trasferring and perhaps get your solicitor to write seeking confirmation of this and issuing a letter of undertaking that confirmation will be passed on when recieved to the purchaser.

FWIW

ONQ.

Re: Land Registry Problem

1. You are selling the house to the Council.

2. The council are taking over the estate in a couple of months when presumably the roads and services will be taken 'in charge'.

If this is the case, I would suggest that the best thing to do might be to wait until the Council have taken the roads and services 'in charge', at which point the problem of the right of way will be resolved. Okay, this may delay the sale by a few months but there is no way you will resolve the issue of the right of way any sooner, particularly as Deeds of Rectification, amended maps, etc will be required and will increase your costs.

What does your solicitor say?

Re: Land Registry Problem

Hi, Thanks for the replies,

Is this an issue just for my house because many houses have been bought and sold on the road one only last month and no one has had this problem.

I spoke to the builder and he said he does not have the map as his Solicitors at the time have ceased trading.

As for the Council taking over the Estate they say two months but it could be way longer also they bought a house across from me 5 years ago and I can't understand why they don't refer to their files for that.

Thanks again for the help .

PS: Can i use a map my solicitor already has?

Re: Land Registry Problem

The deed that they are currently looking at is either a copy or a counterpart. Neither is the original deed.

To get the original deed, you can apply to inspect (and get a copy) of the Instrument that opened your folio. That will the be reference number under the date of registration at the first ownership entry. This will have the original transfer that was used to open the folio, and it's possible that it may be marked on that map. It costs 2.50 to inspect and 25 to get a copy.

It will take a few days to retreive the Instrument from the repository, but you can then take a look at it and see if the roadways are mapped as described. If it is, your solicitor can take up the original deed on accountable receipt to show it to the Council, and return it to the PRA.

Re: Land Registry Problem

Hi j26

I already got the instrument and a yellow marking is not showing on it . I don't know what else to do. I am on first name terms with the people in the Land Reg they went out of their way to help me never waited longer than a day for anything. the superintendent says that they do not mark rights of way in estates and that common sense should prevail

Re: Land Registry Problem

If they're digging in on this, the only way I can see of getting around it is for your solicitor to draw up a deed of grant of right of way and mark the yellow over the roadways (use a copy of the map from the instrument), and get the builder to execute it. Then hand that over to the Council when closing the sale.

Alternatively, could your solicitor argue that there is an easement of necessity? Without the right of way, your site is landlocked, and the common law recognises that it is necessary to have a right of way to access the property.

Is this house along the Western Seaboard by any chance? Easements tend to be more of an issue in the West than in the East. The practice of mapping rights of way over roadways in housing estates is not really encouraged nowadays for this very reason - sales get held up over a minor technicality. It seems a bit unreasonable to me to hold up the sale over this imo.

Re: Land Registry Problem

No the house is in Limerick City and its a Cul De Sac with 24 houses and no one else has had this problem and they already own a house across the road from me, Is this just a problem with my house do you think

Re: Land Registry Problem

reddanmm said:

No the house is in Limerick City and its a Cul De Sac with 24 houses and no one else has had this problem and they already own a house across the road from me, Is this just a problem with my house do you think

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No, I'd just say common sense prevailed in the past. As I said before, it's pretty unreasonable to hold up the sale for this, but if they are insistent you may have to go down the route of getting the current registered owner (presumably the builder) of the roadways to execute a grant.

If the the builder was a company that's now dissolved, then you're in for a lot of hassle, as you're then going to have to go to the Department of Finance to get them to grant you the right, or apply to court under S35 of the Land and Conveyancing Law Reform Act, 2009 for an easement by prescription.

See if you can talk sense into them.

Re: Land Registry Problem

Yeah you would think common sense would prevail since they already bought one on the estate already and they are in negotiations with the builder to take over the estate. How much would it cost to get the builder to execute the deed of grant. thanks for the help by the way

Re: Land Registry Problem

reddanmm said:

How much would it cost to get the builder to execute the deed of grant.

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Not too much - your solicitor should be able to draft it up, someone would have to mark the map, and you'd have to at least cover the builders legal costs. Talk to your solicitor and see how much it might cost.

Re: Land Registry Problem

I Know an Architect would he be able to mark the map and i also Know an engineer

Re: Selling house to Local Authority: "Right of Way" not marked up to LA's satisfacti

Ive reworded your title (of your post) to more fully reflect the question. Please let me know if this is ok.

aj
moderator

Re: Selling house to Local Authority: "Right of Way" not marked up to LA's satisfacti

HI Aj
Its not marked to the Councils (The buyer) satisfaction the Land Reg are fine with it. Thanks

Re: Selling house to Local Authority: "Right of Way" not marked up to LA's satisfacti

Hi All This is the latest update on the Map saga. The City Council are inspecting the Filed Plan from the parent Folio to ascertain if the road accessing your property from the public road is contained in same. will this show any more light on the situation.
Please put me out of my misery