FTB - property with interesting Boundary and RoW issues

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GreatWestern
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FTB - property with interesting Boundary and RoW issues

Post by GreatWestern » Wed Oct 17, 2018 1:46 am

Hello all,

I'm reaching out to the fantastic community here to sanity check the decision(s) re this purchase. Plus, I'm hoping this will stop me from getting caught out by unknown unknowns. And as one would expect, as FTBs we are emotionally invested in the property so need that detached pov.

Input Required
  • Legal and Financial risks;
  • Options: Ask for reduction, further indemnity insurance, or execute the deal as is.
Background
  • 1930s End of Terrace;
  • There is a strip of land next to the property that runs from the back to the main road to the front of the property. Title deed of the property doesn't mention RoW over this passageway;
  • Three neighbouring properties have RoW over this passageway;
  • Property benefits from a separate RoW using passageway to the rear of the property leading to a different road;
  • Owner deceased - sale by the beneficiary. Not possible to get stat dec. Executor was unaware of this issue;
  • Deceased owners have built a garage over part of this strip and taken over the rest e.g. installed gates, concrete slabs match work elsewhere on the property;
  • Freehold owner of this strip was the developer in 1930s. Deceased and unlikely for his successors to have any interest in this matter. But this is an assumption.
Various annotated Title Plans Risks
As I understand it, the primary risk stems from RoW holders demanding that the garage be altered in order to restore the passageway. Surveyor thinks that is a low probability event and thinks RoW was probably through the gardens. However, agrees that the worst-case scenario, while improbable, can include altering the garage.

The secondary risk stems from losing access to this passageway. Seller has offered to provide indemnity insurance to cover this risk.

Neighbour's Title
The land has the benefit of a right of way over the passage way leading
from the back and along the south-eastern side of the land into Main Road.
Their neighbour's Title
The land has the benefit of a right of way over the passage way leading
from the rear into Main Road between Neighbour's Property and Candidate Property.
Questions
  • Should I be concerned that I may have to alter the garage at some stage? As I wish to use this for home office and survey has picked up asbestos in the roof, the combined works would be costly ie roof plus adjusting the boundary. Garage is roughly 5x5m. The strip is 0.8m wide and 5m in length where the garage overlaps on it;
  • Given above, it is reasonable to ask for some deduction to cover the costs or some type of indemnity insurance product would suffice?
  • Any other advice?
If you've made it this far, thank you for reading! I look forward to your comments and suggestions.

IdefixUK
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Re: FTB - property with interesting Boundary and RoW iss

Post by IdefixUK » Wed Oct 17, 2018 7:21 am

Hello Greatwestern,
Have you given us ALL of the wording (exactly as it is written) in the deeds of the neighbouring houses that concern the strip of land? Is there a plan attached to the deeds of the neighbouring houses showing the extent of the ROW? Have you checked the deeds of other houses in the area which might also have rights over that strip of land? Is there any evidence of old gates or pathways between the gardens along the terrace? Not all ROWs are written down in deeds.
Presume that the garage has been in situ for a good number of years so it is now unlikely that any Judge would award an order for it to be demolished to reinstate any ROW even if one could be shown to exist.

Regards

Collaborate
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Re: FTB - property with interesting Boundary and RoW issues

Post by Collaborate » Wed Oct 17, 2018 7:31 am

The safest option would be for the new building to avoid going on the footprint of the ROW, surely?

jonahinoz
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Re: FTB - property with interesting Boundary and RoW issues

Post by jonahinoz » Wed Oct 17, 2018 8:02 am

Hi,

Does estoppel trump an easement?

If the garage vhas been in it's present location for a number of years, and is obvious to everybody with an interest, and nobody objected while it was being built, nor since it was built, has it gained an easement over the previous easement?

Should ... and how ... Idefix, having bought this property, take steps to legitimise the situation, in preparation for when he eventually wishes to sell?

602

Collaborate
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Re: FTB - property with interesting Boundary and RoW issues

Post by Collaborate » Wed Oct 17, 2018 8:35 am

jonahinoz wrote:
Wed Oct 17, 2018 8:02 am
Hi,

Does estoppel trump an easement?

If the garage vhas been in it's present location for a number of years, and is obvious to everybody with an interest, and nobody objected while it was being built, nor since it was built, has it gained an easement over the previous easement?

Should ... and how ... Idefix, having bought this property, take steps to legitimise the situation, in preparation for when he eventually wishes to sell?

602
I seriously doubt that. Estoppel relies upon the person now seeking to enforce their rights allowing another to believe that they wouldn't enforce those rights. If your argument carries weight it would mean no one who fails to enforce a ROW would see it survive a change of ownership of a servient property.

span
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Re: FTB - property with interesting Boundary and RoW issues

Post by span » Wed Oct 17, 2018 9:50 am

Walk away.

Find another property to buy.

GreatWestern
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Re: FTB - property with interesting Boundary and RoW iss

Post by GreatWestern » Wed Oct 17, 2018 11:26 am

IdefixUK wrote:
Wed Oct 17, 2018 7:21 am
Hello Greatwestern,
Have you given us ALL of the wording (exactly as it is written) in the deeds of the neighbouring houses that concern the strip of land? Is there a plan attached to the deeds of the neighbouring houses showing the extent of the ROW? Have you checked the deeds of other houses in the area which might also have rights over that strip of land? Is there any evidence of old gates or pathways between the gardens along the terrace? Not all ROWs are written down in deeds.
Presume that the garage has been in situ for a good number of years so it is now unlikely that any Judge would award an order for it to be demolished to reinstate any ROW even if one could be shown to exist.

Regards
Thanks for your response.

Yes - wording has been reproduced exactly.
Exhibit A is the plan for neighbouring property and other two are similar.
Yes - checked all the surrounding properties. Only three have RoW over this strip.
Deceased owner bought this property in the 70s and all evidence suggests that nothing much has changed since then. Another refurbishment took place in the early 90s and bricks flower beds now cover the strip so, worst case, we can be confident that things, as they stand, have been the same for at least 16 years. Ariel photographs from 1999 support that conclusion as well.

I think you have got to the heart of the issue re the judge ordering the demolition of the garage. Given these properties have another passageway to the rear with pedestrian and vehicular access that they can use, like the candidate property, it is unlikely for anyone to spend money to reach to court stage. But is that a wise assumption to make for me as a buyer, or should I discount the price to reflect that improbable event?

GreatWestern
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Re: FTB - property with interesting Boundary and RoW issues

Post by GreatWestern » Wed Oct 17, 2018 11:28 am

Collaborate wrote:
Wed Oct 17, 2018 7:31 am
The safest option would be for the new building to avoid going on the footprint of the ROW, surely?
You are correct if it was a new building but I was hoping for a straight conversion to home office/play area within the existing double garage. When I priced my bid, I assumed internal works and perhaps a new roof.

Collaborate
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Re: FTB - property with interesting Boundary and RoW iss

Post by Collaborate » Wed Oct 17, 2018 12:52 pm

GreatWestern wrote:
Wed Oct 17, 2018 11:26 am
Given these properties have another passageway to the rear with pedestrian and vehicular access that they can use, like the candidate property, it is unlikely for anyone to spend money to reach to court stage. But is that a wise assumption to make for me as a buyer, or should I discount the price to reflect that improbable event?
It is always right to discount the value of a property that has poor title. Remember as well that if you need a mortgage this may be a sticking point.

GreatWestern
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Re: FTB - property with interesting Boundary and RoW iss

Post by GreatWestern » Wed Oct 17, 2018 1:13 pm

Collaborate wrote:
Wed Oct 17, 2018 12:52 pm
GreatWestern wrote:
Wed Oct 17, 2018 11:26 am
Given these properties have another passageway to the rear with pedestrian and vehicular access that they can use, like the candidate property, it is unlikely for anyone to spend money to reach to court stage. But is that a wise assumption to make for me as a buyer, or should I discount the price to reflect that improbable event?
It is always right to discount the value of a property that has poor title. Remember as well that if you need a mortgage this may be a sticking point.
Thanks. Is there a methodology that you would advise? I'm considering taking the cost of a new garage and then dividing it by 2 as the discount. Does that sound fair?

Collaborate
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Re: FTB - property with interesting Boundary and RoW issues

Post by Collaborate » Wed Oct 17, 2018 8:34 pm

You'd have to speak to a surveyor for that.

jonahinoz
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Re: FTB - property with interesting Boundary and RoW issues

Post by jonahinoz » Thu Oct 18, 2018 4:37 pm

Hi,

How about you approach the three neighbours, who may not know that they have an easement, offer them cash to give up their rights. Only they can know what it is worth to them ... and only you can know what it is worth to you (subject to your negotiations with your vendor) But it's all three, or none.

Tell them it will be an unexpected windfall arriving just before Xmas.

Maybe you could persuade your vendor to do the negotiating ... with him doing the paying on completion, and you paying the asking price for his house.

What's the price per metre squared for building land in your area? Regard that as the top price to get under.

If the three wanted to sell, their buyers would want their easement, so there would be three disputes.

John W

IdefixUK
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Re: FTB - property with interesting Boundary and RoW issues

Post by IdefixUK » Thu Oct 18, 2018 10:46 pm

jonahinoz wrote:
Thu Oct 18, 2018 4:37 pm
Hi,

How about you approach the three neighbours, who may not know that they have an easement, offer them cash to give up their rights. Only they can know what it is worth to them ... and only you can know what it is worth to you (subject to your negotiations with your vendor) But it's all three, or none.

Tell them it will be an unexpected windfall arriving just before Xmas.

Maybe you could persuade your vendor to do the negotiating ... with him doing the paying on completion, and you paying the asking price for his house.

What's the price per metre squared for building land in your area? Regard that as the top price to get under.

If the three wanted to sell, their buyers would want their easement, so there would be three

John W
The first post and the title plans suggest that the strip of land in question is owned by the estate of the 1930s developer and not by the vendor. If the OP goes ahead with the purchase he still will not own that land, and gaining adverse possession of land subject to ROW easements would be difficult if not impossible. (That said the part upon which the garage stands has a reasonable chance if the ROW for the neighbours didn't extend that far back down the garden area).
If the OP is happy with negotiating a good discount on the purchase price considering the ROWs then ok, but any sensible subsequent purchaser will want the same when the OP comes to sell on. Overall I think the OP would be better looking for another property to buy and leave this one well alone.

Regards

GreatWestern
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Re: FTB - property with interesting Boundary and RoW issues

Post by GreatWestern » Thu Dec 13, 2018 1:24 am

Many thanks to the incredibly helpful community for sharing your insights. As a quick update: We negotiated a discount and got a bespoke indemnity insurance to cover the critical risks with the cost being paid by the seller. It is also indexed. For future readers, it did take a bit of time to speak to multiple underwriters (indirectly, unfortunately) and some declined to provide cover - more on this below. We secured a cover that matches exactly what we needed. The cost was £700 in Nov 2018 for a multi-risk policy.

Learning point was that the solicitors weren't as detailed when sharing information regarding the risks so always ask questions, even create diagrams and share your research and list exactly the risks you want to cover. Feels so obvious now but it added a lot of unnecessary back and forth.

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