Problem regarding right of way

teddybones · 11-07-2020 3:24am #1

Not sure if this is the right place to post this but anyone who could point me in the right way I would be very grateful.

I am selling my mam's house but the sale has fallen through because of a right of way issue.

The buyers bank won't approve their loan because there is no right of way attached to the deeds. The lane on which the property is situated used to be a public road in the 18th, 19th and very early 20th century. As a public road none of the houses on the lane ever needed a right of way or this is my understanding.

Anyway as the years went on the council stopped maintaining the laneway. My parents, who both died within the last two years, told me when I was younger that the council used to maintain the laneway but stopped doing it during the 70s. Houses have been sold on the lane before and no one has ever had an issue with the right of way. Indeed one was sold last year and the owner just signed a declaration saying they had always enjoyed uninterrupted access as do all the people who live on the lane. So I never thought this would be an issue.

Anyway during this whole process my solicitor asked me to find out who owns the lane. Nobody knows. There are farms either side and neither of them know who owns it even though they have been farming the land for nigh on the last century. There is no record of it in the land registery. None of the neighbours or locals know. They all maintain nobody owns it because it was a public road. My solicitor contacted the council. They say they aren't in charge of maintaining it. They never said they didn't ever maintain it so my solicitor was chasing that up but we have heard nothing.

It's all a big mess and I am pulling my hair out because there is an equity release loan on the house which was due last February and they have extended it till August which was when we were due to close but the buyers bank pulled the plug. We now have to apply to register a right of way with the land registery which may take up to a year. Does anyone know how I can find out who owns the land or how to prove its a public road (or at least was at one time) and is the council's remit. I fear the council won't admit to ever having maintained it because they will then have an obligation to start maintaining it now if they do. This has actually been a complete nightmare. As I inherited the house I now have a massive equity release loan hanging over me. And I don't know where to turn or what to do.

Thanks

jimmycrackcorm · 11-07-2020 3:46am

You should engage the solicitor who sold your neighbours house last year.

11-07-2020 1:09pm

This may not be entirely helpful OP but here goes.

You'll find in a lot of cases like this the lanes and passages remain the property of the builder when the house construction was finished. Fast forward a hundred years and of course the builder plus anyone who worked for him are long dead. Once the builder retired it was probably just long forgotten about, therefore never claimed or transferred by/to any next of kin, never requisitioned by the council, etc etc.

If you know the name of the builder it might speed things up a bit with the PRAI (the land registry, google their office hours but I doubt the public can simply walk in off the street at the moment). The registration of all land is compulsory under the law, but doesn't necessarily mean that it's been complied with particularly regarding older places like this and where problems like yours begin. But theoretically this should include the land on which the lane way is built as well as the land on which the actual house is built. I don't actually know, just saying because it might give someone who does this for a living a starting point to chase it down.

To be honest with you though I'm really a lot more surprised to hear your solicitor has simply shrugged his shoulders here and told you to go figure it out for yourself. Does he not specialise in property law? I know it sounds like an odd situation, tedious and a complete pain in the hole to deal with yourself actually, but I can't imagine an experienced property solicitor not coming across this before.

Like the previous poster says, ask your neighbour's solicitor. At the end of the day the law is the law is the law and all that, it can't be applied differently to him and not you. Could just be a case of two people not knowing how to do their jobs together at the same time, ie your solicitor and the buyer's bank finance officer. Bad luck and timing but it happens!

Claw Hammer · 11-07-2020 5:21pm

Deleted User wrote: »

This may not be entirely helpful OP but here goes.

The registration of all land is compulsory under the law, . !

That is not true. The o/p will have to see about getting Councils opinion on the matter. Going to the neighbours will not necessarily solve the problem. The issue is that the purchaser's solicitor, in the case of the O/P's house, refused to accept the title offered. Other solicitors may not be so picky so it may be that another purchaser would accept the situation. It may be possible to solve the problem with a bond.

teddybones · 11-07-2020 7:17pm

It's the bank won't accept the deed. In the case of another house being sold on the lane last year it was a cash sale and the buyers were happy with a signed declaration by the owner that they had enjoyed uninterrupted access for their lifetime at the house and that all others living on the lane had too for time immemorial.

What do you mean a bond? How would I go about this?

Lenar3556 · 11-07-2020 7:33pm

teddybones wrote: »

It's the bank won't accept the deed. In the case of another house being sold on the lane last year it was a cash sale and the buyers were happy with a signed declaration by the owner that they had enjoyed uninterrupted access for their lifetime at the house and that all others living on the lane had too for time immemorial.

What do you mean a bond? How would I go about this?

The bank don’t usually review the specifics of the title, they look for a the purchasers solicitor to confirm that the title is good. It is possible however that the bank sent the file to another solicitor on their panel for a fresh review. This happens from time to time.

A bond in this instance would be a form of insurance policy which would serve to protect the purchasers / banks interest to some extent and hopefully overcome this particular issue.

teddybones · 11-07-2020 7:43pm

Interesting. I will talk to my solicitor about a bond when i speak to her during the week. I was told that the buyers bank wouldn't accept the title but perhaps it's their solicitor who won't accept the title. I might speak with the estate agent about this. And get some more clarification.

Thanks you. This has been very helpful.

11-07-2020 8:26pm

Claw Hammer wrote: »

That is not true. The o/p will have to see about getting Councils opinion on the matter. Going to the neighbours will not necessarily solve the problem. The issue is that the purchaser's solicitor, in the case of the O/P's house, refused to accept the title offered.

Actually I'm pretty sure that it is true, I'm just saying that it doesn't always happen and happened even less 100 years ago under the circumstances the OP is describing. It's a bit like saying you can't get behind the wheel of a car while drunk because that's the law, it's something else to think that's all you need to stop it from happening.

Anyway, as the OP said it isn't the buyer's solicitor, it's their bank. Sorry but maybe I should have clarified this before posting, I simply didn't want to make my post convoluted and overly-long, but I did have personal experience with a similar issue. In my case it wasn't a bad experience, but nevertheless something I was happy to know.

I live on a cul-de-sac of terraced houses. Out in front in front we have small garden spaces, public path, room to park a car, and room for cars to drive in and out.

OK, so far so good, sounds like a lot of places. However there's a pedestrian path that goes around the back of the houses. This path can be accessed via the driveways separating the various gable end houses around the cul-de-sac. Now, there's no real reason for a member of the general public to walk up and down this path, in fact there's no reason you should even know it exists, but it was built, and it's still there today.

The reason it was ever even built is no longer there. If you must know it was a) to allow the builders access certain properties still under construction and b) left there as a selling point in the 1930's and 40's to allow coal deliveries at a time when this was an important thing.

The point I'm getting to here is that there is still a technical right-of-way issue, despite no one using it and even some neighbours not being aware such a thing even exists. A couple of neighbours wanted to expand their back gardens, it's only about 1.5 meters wide but at an average 8 meters wide makes a big difference. The issue preventing this from happening is that no one can be found who legally owns the pedestrian walkway and then blocking a right-of-way that no one either wants, needs, and in most cases even knew was there.

Sorry for being long winded, the TLDR version is essentially the issue was someone else "planting their flag" so to speak and claiming unoccupied land for themselves which someone else might later claim access to walk across. All well and good today if the neighbours can come to a friendly agreement, different story ten years down the line when someone tries to sell or objects to planning permission.

And in my uneducated but slightly experienced opinion that is where the buyer's bank are finding a problem. Not my place to say if they are or aren't making a meal of it, but I think that's the kernel.

ganmo · 12-07-2020 12:59pm

[Deleted User] wrote: »

Actually I'm pretty sure that it is true, I'm just saying that it doesn't always happen and happened even less 100 years ago under the circumstances the OP is describing. It's a bit like saying you can't get behind the wheel of a car while drunk because that's the law, it's something else to think that's all you need to stop it from happening.

Anyway, as the OP said it isn't the buyer's solicitor, it's their bank. Sorry but maybe I should have clarified this before posting, I simply didn't want to make my post convoluted and overly-long, but I did have personal experience with a similar issue. In my case it wasn't a bad experience, but nevertheless something I was happy to know.

I live on a cul-de-sac of terraced houses. Out in front in front we have small garden spaces, public path, room to park a car, and room for cars to drive in and out.

OK, so far so good, sounds like a lot of places. However there's a pedestrian path that goes around the back of the houses. This path can be accessed via the driveways separating the various gable end houses around the cul-de-sac. Now, there's no real reason for a member of the general public to walk up and down this path, in fact there's no reason you should even know it exists, but it was built, and it's still there today.

The reason it was ever even built is no longer there. If you must know it was a) to allow the builders access certain properties still under construction and b) left there as a selling point in the 1930's and 40's to allow coal deliveries at a time when this was an important thing.

The point I'm getting to here is that there is still a technical right-of-way issue, despite no one using it and even some neighbours not being aware such a thing even exists. A couple of neighbours wanted to expand their back gardens, it's only about 1.5 meters wide but at an average 8 meters wide makes a big difference. The issue preventing this from happening is that no one can be found who legally owns the pedestrian walkway and then blocking a right-of-way that no one either wants, needs, and in most cases even knew was there.

Sorry for being long winded, the TLDR version is essentially the issue was someone else "planting their flag" so to speak and claiming unoccupied land for themselves which someone else might later claim access to walk across. All well and good today if the neighbours can come to a friendly agreement, different story ten years down the line when someone tries to sell or objects to planning permission.

And in my uneducated but slightly experienced opinion that is where the buyer's bank are finding a problem. Not my place to say if they are or aren't making a meal of it, but I think that's the kernel.

Rear access to a terrace house is still desirable especially if you intend to extend or renovate.
Your neighbours could extend their garden and put gates either side and maintain the row but it could end up like the green line luas line

Claw Hammer · 12-07-2020 2:46pm

Deleted User wrote: »

Actually I'm pretty sure that it is true,

Just because you are actually pretty sure something is true does not make it true. The only land which must be compulsorily registered, is land which was not previously registered and has been sold. There is much unregistered land around the country and it does not have to be registered.

Deleted User wrote: »

And in my uneducated but slightly experienced opinion that is where the buyer's bank are finding a problem. Not my place to say if they are or aren't making a meal of it, but I think that's the kernel.

There are many possibilities regarding the situation in a lane. What might be the situation in one lane is not necessarily the situation in another. Without title documents it is impossible to say what is happening. In a residential purchase, it is most unlikely the bank who are objecting unless the solicitor for the purchaser of the qualified certificate of title on account of the access issue. The title deeds for every house backing onto a lane should include the original lease of the house in question. There should be a description of the property transferred as well as mention of the lane and access. It should also identify the parties to the lease. If the lane wasn't transferred with the house ownership of it would have remained with the original developer. Title to it can be deduced from the original developer by way of a name search in the registry of deeds.

Problem regarding right of way

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