Defect in title: lack of right of way to access side of house

[neonorigami]

Hello I'm in the process of buying a house but an issue concerning the boundaries and rights of way has come up during the conveyancing.

The house is detached but is not surrounded by its own land on all sides as detached properties often are. It has passageways adjoining it to the left and right. On the right-hand side is a shared passageway leading to its back garden and a neighbour's garden, half of which falls within the house's boundary according to the land registry plan.

To the left of the house there is another passageway that goes halfway up the length of the house. This passage leads to a gate that gives access to the garden of the house round the corner. This garden seems to run all the way up to the house I'm buying.

I am concerned about how I would access the left wall of my house for repairs, because my solicitor has informed me that due to a "defect in the title" of the property, there is no legally enforceable right of way. She says I also have no legal right to the use of services such as cables and pipes.

She proposes that I take out indemnity insurance to cover any costs incurred by the absence of easement, but I don't know if that's the best solution or not. I wonder what these costs could be. The insurance policy would only cover me up to the value of the house and would not cover any action taken by a neighbour. I am worried about what would happen if the neighbour decided to build up against my house or attach things to it - would they be allowed to do that?

The deeds from 1906 says "all division walls are party walls" so I assumed the left and right walls of the house are still considered party walls - does this mean the neighbours technically own half of them, even though it's a detached place?

My solicitor and the vendor are being very slow and unhelpful answering my questions. The vendor just put "don't know" in response to the question in the solicitor's report about who is responsible for the left boundary, which seems odd as it seems to be the wall of her house! So I thought I'd see if anyone here had dealt with this kind of situation before. It's putting me off the house but it was so hard for me to get a mortgage, I am reluctant to pull out in case I can't get one again.

I wonder if this issue would put potential buyers off in future, or if I'm being unduly cautious in finding it off-putting?

[R0b]

Hi,

I am no property expert but I would be concerned about buying a house if there are no legally documented rights of way for that property. I understand that you are concerned about not getting another mortgage for another property so this is something you will have to weigh up as a risk-based decision.

Your solicitor says it's a defect but to me, a defect in the title is something that can and should be rectified either through you obtaining a right of way from your neighbours for a particular price or as your solicitor has suggested, by way of insurance. On the insurance point, are you sure you have understood what the insurance is intended to cover because an absence of easement policy would protect you in defending claims regarding access over land to get to your property. You've stated that the policy would not cover you if your neighbour issue a claim against you which is strange because the policy is intended to do exactly that. What the policy may not cover is digging up the ground for repairs or maintenance but that's something entirely different to access, so you should be sure to ask your solicitor to provide a summary of the policy as to what it does and does not cover.

Property disputes can get very expensive, very quickly so whilst the policy may cover you up to the value of your house, you need to be sure it is adequate. If your house is only worth £150k, that might not be enough if the matter goes to court and you lose, you may have to dip into your own pocket to pay any difference. You can also get legal expenses insurance as an add-on to your home insurance policy which covers up to a certain value, usually anywhere between £50-£100k for disputes which may include property issues so worth looking into that also if the easement policy doesn't cover certain things.

I suspect the vendor may be putting "don't know" to try and avoid liability for misrepresentation as you could rely on those answers if something turns out not to be true. However, there is nothing stopping you from making your own enquiries and knocking on the neighbours to have a chat with them to try to fill in the missing gaps, whether they would have an issue consenting to you going over the land for access or repairs and to formally document that in return for a small compensatory fee. You could then try to use that as a bargaining tool to knock the offer price down to reflect the additional cost and expense you need to make things work, but be aware the vendor might dig their heels in and say no.

Another point to consider is how long the vendor has lived/owned the property. If it has been a short period of time then one might question why are they now selling the property, is that because there are issues based on the issues you have raised, or there could be a perfectly innocent reason behind it. If they have lived in the property for decades then that may suggest everything may be fine, but it needs to work for you because at some point in the future, the neighbours could sell their property and all of a sudden your new neighbours are a pain the backside and refuse you access or right of way. You've also raised concerns about the neighbour building right up to the boundary line which is possible assuming the relevant permissions are granted and there are no restrictions on the title.

Final point, whether issues you have raised put off potential buyers really depends on those buyers. Some buyers just don't have a clue or don't care about the small details because they just love the house and want it so they will do whatever is needed to own it. Other buyers are are clued up and know what to look out for or query are likely to be more cautious and may find that the issues you have encountered are simply not worth the hassle and the better option is to look for another property.

It may come at an additional cost and I am not sure if it falls within the scope of your current engagement, but you may want to consider speaking to your solicitor to see if they can agree provide you with an opinion or a formal letter on the risks of purchasing this property and what options you can do pre/post exchange to get the rights you need (other than insurance).

As I mentioned at the beginning of my post, this is a risk-based decision but you need to take into account what can be done to mitigate these issues, if they are worth your time and cost, and what happens if you don't get what you need, are all of the neighbours going to be friendly and allow you access over their land, what happens if you fall out with them and they revoke that access, can you live with that?

Titles that have defects in them are typically going to be less marketable than those with no defects.

[atticus]

I fully agree with R0b. Think very carefully about all that he has said. If you are going to proceed, do so on the basis of a very clear understanding of the situation and the risk. Do not act in haste to repent at leisure.

What makes you think you might not get another mortgage offer?

[neonorigami]

Hi,

I am no property expert but I would be concerned about buying a house if there are no legally documented rights of way for that property. I understand that you are concerned about not getting another mortgage for another property so this is something you will have to weigh up as a risk-based decision.

Your solicitor says it's a defect but to me, a defect in the title is something that can and should be rectified either through you obtaining a right of way from your neighbours for a particular price or as your solicitor has suggested, by way of insurance. On the insurance point, are you sure you have understood what the insurance is intended to cover because an absence of easement policy would protect you in defending claims regarding access over land to get to your property. You've stated that the policy would not cover you if your neighbour issue a claim against you which is strange because the policy is intended to do exactly that. What the policy may not cover is digging up the ground for repairs or maintenance but that's something entirely different to access, so you should be sure to ask your solicitor to provide a summary of the policy as to what it does and does not cover.

Property disputes can get very expensive, very quickly so whilst the policy may cover you up to the value of your house, you need to be sure it is adequate. If your house is only worth £150k, that might not be enough if the matter goes to court and you lose, you may have to dip into your own pocket to pay any difference. You can also get legal expenses insurance as an add-on to your home insurance policy which covers up to a certain value, usually anywhere between £50-£100k for disputes which may include property issues so worth looking into that also if the easement policy doesn't cover certain things.

I suspect the vendor may be putting "don't know" to try and avoid liability for misrepresentation as you could rely on those answers if something turns out not to be true. However, there is nothing stopping you from making your own enquiries and knocking on the neighbours to have a chat with them to try to fill in the missing gaps, whether they would have an issue consenting to you going over the land for access or repairs and to formally document that in return for a small compensatory fee. You could then try to use that as a bargaining tool to knock the offer price down to reflect the additional cost and expense you need to make things work, but be aware the vendor might dig their heels in and say no.

Another point to consider is how long the vendor has lived/owned the property. If it has been a short period of time then one might question why are they now selling the property, is that because there are issues based on the issues you have raised, or there could be a perfectly innocent reason behind it. If they have lived in the property for decades then that may suggest everything may be fine, but it needs to work for you because at some point in the future, the neighbours could sell their property and all of a sudden your new neighbours are a pain the backside and refuse you access or right of way. You've also raised concerns about the neighbour building right up to the boundary line which is possible assuming the relevant permissions are granted and there are no restrictions on the title.

Final point, whether issues you have raised put off potential buyers really depends on those buyers. Some buyers just don't have a clue or don't care about the small details because they just love the house and want it so they will do whatever is needed to own it. Other buyers are are clued up and know what to look out for or query are likely to be more cautious and may find that the issues you have encountered are simply not worth the hassle and the better option is to look for another property.

It may come at an additional cost and I am not sure if it falls within the scope of your current engagement, but you may want to consider speaking to your solicitor to see if they can agree provide you with an opinion or a formal letter on the risks of purchasing this property and what options you can do pre/post exchange to get the rights you need (other than insurance).

As I mentioned at the beginning of my post, this is a risk-based decision but you need to take into account what can be done to mitigate these issues, if they are worth your time and cost, and what happens if you don't get what you need, are all of the neighbours going to be friendly and allow you access over their land, what happens if you fall out with them and they revoke that access, can you live with that?

Titles that have defects in them are typically going to be less marketable than those with no defects.

Sorry for my extremely late reply - I only just saw your answer today. I ended up walking away from the house in question, but reading your comments is still helpful to me as I've seen another house I also like with a similar issue - one side could only be accessed for maintenance by crossing a neighbour's garden, and there is also no right of way provided for in its title deed.

With the house referred to in my original post last year, the solicitor was very unhelpful about this issue, as was the vendor. All they could suggest was this title defect insurance. I won't be using them for any future purchase. I went to speak to the neighbour and while she didn't mind me crossing her garden to look at the wall, she had formed the impression that the side passage was solely owned by her (it wasn't, according to the title deeds of her own property which I checked online) and had filled it with rubbish, piled up against the side of the house I was trying to buy and physically preventing access. The vendor said all that would be for me to sort out, she wouldn't do anything. So in the end I gave up on that property!

The house I've seen most recently at least doesn't seem to have this fly-tipping issue but it still has the problem of being built on the boundary of another property, so maybe that's one I shouldn't bother with. Thank you for your very thorough answer anyway.

[neonorigami]

I fully agree with R0b. Think very carefully about all that he has said. If you are going to proceed, do so on the basis of a very clear understanding of the situation and the risk. Do not act in haste to repent at leisure.

What makes you think you might not get another mortgage offer?

Thank you for your thoughts! Sorry I only just saw your comment. In the end I decided not to proceed with that house, it seemed too risky and neither the neighbour, vendor or my own solicitor were any help.

I was worried I might not get another mortgage offer because it had been really hard to get the first one, even when using a broker. I'm self-employed and my clients are all based abroad, so many lenders don't like that. But in the end the property just seemed too problematic to proceed with - it had a leaning chimney as well as all the boundary issues!