Advice on unregistered right of way for house purchase
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09-12-2021 10:49am#1
Myself and himself have almost closed on buying our first house out in the sticks. Both parties agreed they wanted a quick sale to be moved in before Christmas and everything was flying along until we've hit a snag with a right of way issue.
The particulars are that the house has a long private laneway up to it that isn't included in the purchase/folio. One half of the laneway belongs to a long deceased local (so the sellers tell us) and we can see on the folio map that a right of way is highlighted over this half. However, the other half of the laneway is owned by a farmer, and that half is not highlighted as us having right of way. Our solicitor has queried this, but I highly suspect that half is unregistered. We are very worried that the only way to sort this is for them to go through what I suspect is a lengthy proceeding of working with the farmer to get the right of way registered, which means there's no way we can close the sale before Christmas and this leaves us in big trouble as our lease is up on 31st December.
Can anyone advise if they know of a workaround for this? The deadline to register rights of way has just been extended by several years so I'm wondering if the bank might allow us to draw down with half the lane way unregistered if we can get some kind of written assurance from the current owner that they are happy to proceed to register it or intend to register it?
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Option 1: Have the seller approach the farmer asking for the right of way to be fast-tracked.
Option 2: Have the seller approach the farmer with an offer to repair / resurface the laneway in exchange for the right of way.
Option 3: Have the seller approach the farmer with a wad of cash.
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Thanks for the options, especially number three!
I actually don't think they'll have an issue getting the farmer to agree to register it, the sellers are the only people that use it and they already maintain it. It's beside an empty field and it is literally just the driveway to the house, there's no through road, but because it's not included in the property we need proof of the full right of way to the house.
I'm just worried that even with the farmer on board the actual process of getting it registered and getting a map issued that reflects the registration will take forever. We're asking our solicitor to explain the situation to the bank and see what exactly they would need to satisfy them on this, but I'm just wondering if anyone knows of a loophole or workaround in the meantime, as these rural rights of way are rarely official from what I've read up on.
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Apologies for being flippant but you need to be guided by the advice of your solicitor and engineer on this. That's why you are paying them.
Answer is no, the bank will not let you drawdown with this issue there as otherwise their security i.e. the house, has no legal access to it and so when they go to sell if they ever repossess it then this becomes an issue for them. Your solicitor can notify them of course and ask to qualify title in this regard but I doubt it will be accepted.
What can be done is as mentioned already - the seller goes to the farmer with a Deed of Right of Way drafted and a land registry compliant map showing the right of way and asks them to sign it, this then gets registered in the land registry and the sellers will get a dealing number while they await registration. Evidence of the signed Deed of Right of Way and dealing number showing the application for registration has been submitted in the land registry should be enough for your solicitor to be able to certify title to the bank and draw down funds.
The Purchase Deed of the property to yourselves should then include this dealing number and current right of way so the land registry know to link them together. Your solicitor should also ask for an undertaking from the solicitors for the sellers that they will ensure the Deed of Right is Way is registered properly and they will respond to any land registry queries promptly.
One other thing could be done to get around it - have the sellers and the farmer provide a declaration that the lane has been used for access for X amount of years and that there have never been any issues etc. See will the bank accept that. Possibly not. Even if they did I'd still want the right of way correctly registered. Is there a previous unregistered Deed of Right of Way in the bundle of prior title documents that may be assigned to new owners? That could also solve the issue.
If this issue is only arising now then I do not see any chance of you closing before Christmas. I think the deadline to get a request for the drawdown of funds before Christmas is very soon.
Options now are try to extend your lease on a monthly basis if possible. Short term rental somewhere else while you wait to close. Stay with family or friends for a while until you close. Or, you could ask your solicitor to ask the sellers solicitor if you can stay in the property you are buying under a caretakers agreement until the sale closes. However, doubtful they will agree to this unless the property is vacant. Also I would always advise sellers against this as there are potential insurance issues and then they don't know the buyers so if the buyer doesn't draw down their mortgage then there's hassle getting them out of the property etc.
Again, you need to chase your solicitor. It should be the other side getting the appropriate Deed of Right of Way drafted and the correct map. It's up to your solicitor and engineer to review said deed and map and ensure they are happy with it.
Finally, there's confusion about unregistered rights of way and easements. If they are not registered by a certain time this does not mean they are gone. It just means the way they were previously registered is gone and a new way of them being registered will/has come into place.
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Thank you for the detailed comment, that's really helpful!
We're coming to terms with the fact that there is probably no chance of this being sorted before Christmas, but even just to know that the dealing number may be enough to draw down the funds is something we can explore. We're due to speak with our solicitor in the next hour so will hash all this out wth them then. I agree it is their responsibility to advise us of the options and possible outcomes, but I wanted to see if anyone had any additional information while we waited to speak to them.
I had also thought of a caretaker's agreement. The sellers are officially moving out tomorrow, so the house will be vacant from then. We have met them and have been keeping each other up to date with the proceedings so we're not entirely relying on the solicitors going back and forth. I have a friend who sold their house last Christmas and had a similar situation and they agreed to a caretaker's agreement against the solicitors advice. The new owners were able to draw down the mortgage three weeks after moving in under the agreement.
We are going to try to extend out lease as the first option, as I can't find much information at all about caretakers agreements online and even less about how it would impact us. I am assuming that just as the seller would be leaving themselves vulnerable, we would too if anything happened to us or the property while we were there under the agreement. We are going to query this option with our solicitor also if we absolutely have to. It would definitely be easier to just stay where we are for another month though.
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OP good luck. All very unsettling indeed.
The house I rented in Kerry was accessed by a r.o,w that had never been legalised. Just used for decades.
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Thanks for the comments.
As an update, our solicitor asked for the sellers to sign a declaration stating they have used the laneway for the entire time they've owned the home and they have never had any issue, or something to that effect. He told us if they can show they've had use over the laneway for 20 years, the bank should accept it.
The sellers signed and returned it today, but they have only had the house 17 years so can't vouch for the other 3. Our solicitor has submitted it to the bank but he's now not sure if they will accept it because its not over the course of 20 years which is apparently what it needs to be. I thought I read recently that continuous use only needs to be proved for 12 years now, but maybe I'm wrong.
Either way, we've submitted all documentation for review before close of business on 10th of December, so we're technically in under the wire for a guaranteed Christmas closing. But there's no way to know if the bank will accept the declaration, and if they don't, all bets are off.
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Unregistered right of ways are no less legitimate and anyone trying to contest them will face the same hurdles
Right of ways are part of the cultural fabric of rural Ireland, more non registered than registered out there ,the right of way was presumably used out of necessity by vendors ? so it carries over to purchaser
Consult a surveyor if need be
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Happened my neighbour. Same thing a lane with rights split in two. Purchase was held up for weeks waiting on the farmer to respond to their solicitor.
Got to the point the buyer just called up to his house and asked him. He was fairly elderly and said had gotten all the letters but didn't understand them so just ignored it.
When it was explained that all they needed was a letter saying they could have access to the lane to get to the house he wrote it there and then.
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We had a similar situation OP and were able to drawdown with the dealing number following the neighbour signing the relevant paperwork to register the ROW. The only real delay was that the neighbour didn't feel the same sense of urgency that we/the sellers did so took his time returning the relevant paperwork to the solicitor. All resolved and completed in the last few weeks. Hope it turns out well for you and the statement from the sellers is sufficient to quell the bank's fears.
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Glad you're getting it sorted by the sounds of it, which is the main thing. You're thinking of adverse possession (squatters rights) this is different, it's an easement by prescription, which is 20 years.
Tbh, and just managing expectations here, I doubt you will close before Christmas. If your solicitor has sent in the declaration re long use of the right of way to the bank and asked them if it is acceptable then this goes to a team of in-house solicitors who then decide if it is acceptable or not and if your solicitor can qualify title in this regard. They are usually flooded with requests. I'd advise get on to whatever rep you are dealing with in the bank and ask them to get this put at the top of the pile and reviewed asap so funds can be drawn down.
Has your solicitor actually requested draw down of funds officially? Highly unlikely as they would need to wait and see if the bank will accept the declaration. Have you insurances etc. in place also? These can hold up drawdown. There's always usually one or two small things to be sorted or submitted for drawdown even after you think you've submitted everything.
I'd say you will need to have everything with the bank by this Friday and an answer from their legal department on the declaration to ensure drawdown before Christmas. Even at that, it can take 5 days for the funds to hit your solicitors account, the solicitor then has to send the balance closing funds to the sellers solicitor and do closing searches which have to come back ok. I really can't see it closing before Christmas but I do hope it does. Keep us posted.
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We've been working with an independent financial advisor/broker throughout this whole process and they have been pushing their rep on our behalf. The good news is that the bank have at least come back with more questions today, so it is being reviewed and pushed along. They asked:
A. Who currently maintains the laneway? (the sellers do)
B. Will the council take charge of it, and if so, when? (Our solicitor said the council don't take charge of roads that are essentially cul-de-sacs so that's not an issue)
C. If the laneway to the property doesn't abut a public road, is there right of way to the laneway via this road? (The road is council owned and maintained and the solicitor has a map showing this)
This is all they've asked for, they haven't given any indication yet either way of if the declaration will be acceptable. I'm assuming it might hinge on the answers to these questions. But I'm pleased they're at least engaging on the issue this quickly considering it was only submitted on Friday. In the meantime, our solicitor has also gone back to the seller's solicitor asking them to re-do the declaration as there's some legal thing that the house has been in constant occupation for over 20 years regardless of who owned it so the 17 year thing doesn't apply as continuous access for over 20 years can be proved. I don't fully understand how he's proving that but it sounds like it can only increase our chances so happy days.
We asked our solicitor to send the cheque request on Friday along with the declaration, we figured it's better to have it in as we know they won't issue it until they're happy with everything but we wanted it submitted anyway and our solicitor said it was no harm. We also do have all of the insurance stuff in place (life assurance and home insurance) and pretty sure it activates this month actually.
I'm going to ask our solicitor tomorrow if it's possible to do the searches while we wait for the bank to come back on the declaration. I don't know if this is possible, but I don't see why something so important is left until the very last moment anyway, and I definitely don't want any more surprises with this, so hopefully this can be ticked off as well.
I'm also hopeful that if we get official confirmation from the bank that they've released the funds to our solicitor, and he transfers the remainder of our deposit while we wait for the banks money to come to him, that miiiight be enough for the sellers to agree to let us at least get our stuff into the house. I mean at that stage, barring one of the solicitor's running off with the banks money, it's pretty much a done deal and just a matter of waiting for things to clear into accounts.
While we wait though we are planning for not closing before Christmas and have provisionally booked to put our things into storage in case of worst case scenario.
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That all sounds positive and it sounds like everyone from every angle possible is on top of it.
Good that the bank replied so quickly. Hopefully your solicitor answers them and they are happy.
Sounds like you are well within a chance of getting it done before Christmas with these updates, so fair play. It will be tight though.
The searches are supposed to be done on the day of closing so you can't really do them before hand. Well you can, but you'll have to do them again on closing so you can just pay twice if you want. The results are pretty much instantaneous so no worries there. It's just if something shows up on them that wasn't disclosed by the other solicitor to your solicitor that can put a stop on things. It's very rare though that this happens.
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Just an update on this, to maybe give someone else hope if they're ever in a similar situation and stumble across this.
So the headline is that the bank accepted the declaration of long use, even though it ended up only being for 17 years and not the required 20 years. They confirmed it last Friday and the funds were released today, meaning we have in fact closed the sale before Christmas!
However, at the same time as we were waiting for the bank to confirm we sent the sellers an email to clarify what the hold up was, as we were getting agro vibes from them as if they thought we were holding up the sale for the craic. In this email, we included a screenshot of the map our solicitor had showing only the partial right of way.
They got back to us a day later and said they were absolutely shocked that that was the map we had, they had had no idea and were under the impression from their solicitor that the correct map had been sent to our solicitor weeks ago. They immediately got onto their solicitor and lost the head at them, and within 24 hours the correct map and the whole trail of transfer of deeds concerning the right of way had been furnished to our solicitor. Just as our solicitor got those, we got word that the bank had approved the declaration anyway, but the bonus is that the right of way is fully in tact and we don't have to go about registering it or anything.
After the mess up with the sellers solicitor, the sellers agreed to give us keys once the rest of the deposit was transferred on Monday so we managed to get moved in Tuesday (yesterday).
It has been a crazy stressful nightmare getting this sale through before Christmas, but we got there in the end. Thanks to everyone who commented with advice and support, it was very much appreciated.
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