Land Boundary Query

gg2009

Hi all,

In the process of purchasing a house and a query has arisen surrounding the land boundary.

The facts are -

- house was purchased in 2018 by the now vendor. The piece of the folio in question was given a ROW agreement at the time as it is where the septic tank is. The rest of the property is surrounded by a hedge. The area where the septic tank is located is included in the property folio but not the physical boundary.

- we went sale agreed on the property. The vandor and adjoining land owner have in place an agreement saying we can rectify the boundary and plant a new hedge when the sale has gone through. No specifics as to the process are included in the agreement.

- the bank, rightly so, want the boundary fixed before our mortgage is drawn down. We approached the adjoining land owner to ask if he minded us having a land survey done and a declaration of identity drawn up when a new fence was put in place. We waited a month for reply through his solicitor. No response. We went ahead with the survey in agreement with the vendor.

- we now need to put a fence up and have the surveyor check it's position for the declaration of identity. It has been another month and the neighbour has not been contactable.

The question is do we just push on and put up the fence etc? We would rather not without his consent but an 8 week delay to be polite is becoming frustrating considering he was happy for it to be corrected after the sale.

Im trying to gather the facts and think if he did take it to a solicitor and say he was unhappy then -

- the folio is thought to be correct

- he was willing to sign an agreement to say we could adjust the boundary post sale

- we have used a chartered surveyor

- we have a declaration of identity

- he did not make a claim for adverse possession

- the 12 year rule does not apply as the ROW agreement was in place within that time frame

All thoughts welcome! Thanks in advance.

Peregrinus

Maybe I'm confused. If the parcel of land with your septic tank on it is outside the hedge but is part of the folio, why would there be any need for you a right of way agreement in relation to it? The owner of the folio doesn't need a right of way agreement in relation to land included in the folio. Is there an agreement giving a third party a right of way over that parcel of land? If so, who? And why?

Short answer to your query; you don't own the property yet; you have no right to enter on the land without permission, much less to do work like putting up boundary fences.

Slighlty longer answer. The current owner of the folio can put up a boundary fence unilaterally. But that may not satisfy the lender; what they want to know is that the boundary is clear and undisputed. But if the neighbouring landowner doesn't agree to the boundary fence, that's a bit of a hint that he may be keeping his powder dry for a dispute about the boundary.

gg2009

Hi @Peregrinus thank you for your reply!

1)We don't know why the initial ROW agreement was put in place, maybe it was to satisfy the bank with less hassle?

2) absolutely correct, all being done with the permission and cooperation of the vendor.

3) the current owner was of the impression the neighbour was co-operative as he assisted in having an agreement drawn up that stated once the sale had gone through the new owner could "re-instate the boundary as per the folio and re-fence the property". Ourselves and the current owner have established the folio boundary with the help of a chartered surveyor.

gg2009

I guess our big question is -

If we have a declaration of identity and a fence will the bank accept this as the boundary has been re-established? What is their mechanism for finding out the neighbours acceptance of this ?

What is the neighbours comeback if we go ahead (with a survey, a declaration of identity, the folio is correct etc) ?

Peregrinus

The bottom line is that we don't know why the neighbour won't respond to your approaches. And neither does the bank.

Will they accept the vendor's declaration of identity, plus the fact of their being a fence erected? We don't know. On the other hand, they might be spooked by the fact that the neighbour's attitude might be changing.

I'm still a bit curious about the right of way agreement, because it makes me think there's something about this situation that I haven't understood. Who granted the RoW? Who did they grant it to? Why? The reason I ask is that the fact that this agreement exists makes me think that someone, somewhere, has an interest in the land that I don't know about. And if that someone is the neighbour, then if we knew what interest he had in the land that might cast some light on what his attitude to the boundary is.

gg2009

Our thoughts were that it was the quickest way for the current owner to satisfy the bank but I'll query it!

Furze99

Same question - why would the current owner need a right of way to access land they supposedly own?

When an arrangement of a ROW for a septic tank arises, it usually because a site has insufficient space for the tank/ percolation area. An arrangement with neighbour is then made to put it on adjoining land and hopefully a legal ROW established so that it can be serviced. That'd be the normal kinda situation.

gg2009

I guess we focused on the fact that an agreement was put in place before the house was listed to allow the boundary be changed to reflect the folio....

Lenar3556

https://www.boards.ie/discussion/comment/121908425#Comment_121908425

Yes. But it’s not clear what’s actually going on.

As others have asked, If the septic tank and percolation is within the folio why has this become an issue? I appreciate there is a hedge/physical boundary in between. Is there perhaps a wider mapping problem, and the tank isn’t in actual fact within the property at all?

I am presuming it was your solicitor who has flagged the situation with the lender in the first instance? Why did he feel he wasn’t able to certify good title as things currently stand? It sounds like there is some element of a dispute.

What are your solicitor’s proposals now to help progress the matter?

Ultimately I think this is something for the vendor to sort out. If he has a good relationship with the adjoining landowner why doesn’t he approach him and reach some agreement. The adjoining landowner is probably looking for a few bob.

mickdw

Call a halt. Instruct vendor to have this corrected before you proceed.

Vendor should be dealing with adjoining landowner, getting fence corrected etc.

Why get involved.

I'm dealing with something very similar in Mayo and vendor seems to think they can bluff their way to selling something that clearly needs sorting.

standardg60

All sounds very fishy, there is no reason for you as a third party to be involved in any of this, should be completely between the vendor and landowner.

Why would they have an agreement to install the boundary after the sale at all? Why not do it before?

Part of me wonders whether the vendor has an interest in the land too. Having an agreement to change the boundary afterwards doesn't preclude that it's going to be free to do. I wonder if that's what they're up to.

Claw Hammer

If there is an agreement to change the folio, the application, with the written consent of the neighbour should be in the Land Registry and pending at least before you sign the contract. Whay has the vendor not arranged this? The bank, with good reason, don't want to lend into uncertainty or litigation.