Rights of Way- Private Road Headache

HJC2009

Hi I wonder if anyone would be able to shed any light on these issues as they are the last bit we need to sort prior to exchange.

The house we are looking to purchase is on a private rd- no-one seems to know who owns it, and a residents association was set up to maintain it and every property on the street pays around £40.00 a yr costs- No problem with this?! there are approx 40 houses on the private rd.

The problem is there is no rights of way to the property, pedestrian and vehicle on the deeds.

This has been given back to our sellers solictors to look into and I have been informed by the estate agents that it will probably be "our call".

we stupidly agreed to go with the estate agents recommended solictors for a quick move and our move is primerally handled by Call centre staff- who to be honest are useless, so have decided to email our solictor directly.

I just want to know what our options, we are buying with a morgage and HSBC is our provider- is it just a simple as getting the seller to purchase or pay for an Indemnity Policy to cover defective title deeds rights of way.

The property is semi rural and in a village, several propertys have been sold over the last few yrs on the rd so I have no idea why this appears to be such an issue for the solictors to sort out!

Any light shed on the above would be greatfully Received

DVardysShadow

Ditch the call centre solicitor. They are not cut out for this sort of thing. Get a well recommended local solicitor with experience dealing with more complex conveyancing. You will lose whatever you owe the call centre operation, but you need to count that as bad money now.

Whatever problem you are leave unresolved now, you will see play out again when you come to sell, so ideally you want a complete fix. In your position, I would be looking for a declaration from your vendor as to the fact that they have had unimpeded use of it since whenever. Before even considering an indemnity policy. With a certain number of years unimpeded use, a right of way will be set in which will be very difficult for a long lost owner to overturn. Your vendors will give you a good headstart on getting that issue resolved and a proper solicitor will tell you what will be required to get the rights you need. Once you have that in place, you will know how many years you will need to lean on an indemnity policy - and get that policy anyway.

If the houses were all built by one builder or if the land on which people have built was all owned originally by one person there is still probably a residual owner, although I am guessing that there are no records with the Land Registry. If you do find out about any potential owner, make a choice as to whether to follow up with them or take the indemnity policy. If you involve them or even mention the policy to them, then you could invalidate the policy.

G_M

Trouble with an indemnity policy is that it won't actually GIVE you a right of way. So worst case scenario, someone pops up, claims the road, and stops you using it.

OK, the IP may cover your financial losses, but you still won't be able to walk/drive to your house!

After 10 years unquestioned use by you or previous owners, suitable certified to satisfy the Land Registry, you can get a ROW added to the Title.

But as suggested above, get a proper solicitor to arrange this.

Richard_Webster

After 10 years unquestioned use by you or previous owners, suitable certified to satisfy the Land Registry, you can get a ROW added to the Title.

Not rights of way - LR require 20 years proof before they will note that a right of way is claimed and in practice 40 years before they will consider it as a definite right.

In practice an indemnity policy is probably the answer.

HJC2009

Hi Thanks so much for getting back to me,

It appears this road has always been a issue, The residents association does not own the road and therefore cannot grant rights of way over it. They have "assumed" that each property effectively owns their bit of road "up to halfway across on their side". However, neither the sellers solicitors nor the residents association have sought to prove their assumption is the correct or, if it is not, evidence whether or not the roadway is owned by anyone and which they would do by undertaking a search of the Index Map with the Land Registry.

The Residents Association have also stated that the issue has been dealt with by the provision of statutory declarations together with indemnity policies in the past to protect owners in the unlikely event that anyone claimed ownership of the road and sought to prevent its use.

But according to the esate agent the sellers are refusing to provide either an indemnity policy or a Statutory Declaration, my solictor believes it is because it was missed or not awear of it when they brought the house, so basically I can only hope they change thier minds or we will have to pull out- something I really don't want to do! are these policys expensive or are we as buyers able to pay for them? This is our dream house and don't want to have to pull out.

I have informed the Estate agent that without this we cannot buy the house as morgage providers will no lend, and it is unsellable without these documents so hopefully this will push the sellers to pay for it.

lazer

This is the same issue i had with my house, and what you need to remember is that any future buyer will have the same issue as you over it.

How long have the vendors been living in the house (over 20 years or not?), you at least need a statutory declaration from them, which is free for them to provide, it simply a statement saying thay have been using the road for x years to access x address, and has to be prepared by the solicitor and witnessed correctly.

The indemnity policy is probably around £200 - however the issue is that some mortgage companies may not accept it, if there is a recorded legal owner of the land - I advise that this is checked on the Land Registry.

I actually negotiated a further 5% off the agreed price of my house, as I was considering walking away over no right of way due to the fact it would make it difficult to resell.

HJC2009

Hi Thanks for that, for some reason according to the estate agent the sellers are not prepared to offer either, they have been in the property for 8 yrs so not 20.

I have been infomed that HSBC will accept a policy but just need to get the sellers to sort it, I cannot understand why they are not jumping up and down to help us buy their house- it could be that they do not understand how important these policys are.

Fingers crossed this all works out ok, we are planning on being there for a long time, so not really worried about reselling as we would just have to do the same and maybe pay to up the policy if the house increases in value, however we would look to put rights of way claimed on land registry after 20.

vax2002

I certainly think you can save the £40 a year if thats the case.

lazer

HJC2009 wrote: »

Hi Thanks for that, for some reason according to the estate agent the sellers are not prepared to offer either, they have been in the property for 8 yrs so not 20.

I have been infomed that HSBC will accept a policy but just need to get the sellers to sort it, I cannot understand why they are not jumping up and down to help us buy their house- it could be that they do not understand how important these policys are.

Fingers crossed this all works out ok, we are planning on being there for a long time, so not really worried about reselling as we would just have to do the same and maybe pay to up the policy if the house increases in value, however we would look to put rights of way claimed on land registry after 20.

I was planning on being in mine for a long time too, but the future is not definite for any of us, remember that not all mortgage companies nowadays accept the indemnity if the land owner is traceable, so whenever you come to sell - maybe no mortgae company will accept it. It is a very important point to remember and could make you house cash sales only in the future.

I too thought the same as you, I don't care - I just want the house, and can they please sort it out, but now I'm glad i listened to the advice of others.

A house with no right of way is not worth the same as a house with a right of way, and the price you offered for the house was assuming it has a right of way.

The only reason I can see for the sellers not provideing the statutory declaration is if they can't - ie: There has been some issue with the RoW since they have lived there, make sure the direct question is asked of them about this.

HJC2009

Hi, Thanks for that I will email solictor to get that question asked through the legal channels, I don't think this would have been an issue as it is the same for all the houses on the street and there are over 60 of them, but I could be wrong.

will also check with the solictor about any searches that have already been done.

Thanks so much for all the advice- of all the things that could go wrong in buying a house I never thought this would be one of them.

DVardysShadow

HJC2009 wrote: »

But according to the estate agent the sellers are refusing to provide either an indemnity policy or a Statutory Declaration, my solicitor believes it is because it was missed or not awear of it when they brought the house, so basically I can only hope they change thier minds or we will have to pull out- something I really don't want to do! are these policys expensive or are we as buyers able to pay for them? This is our dream house and don't want to have to pull out.

Indeed your vendors may not be able to provide a statutory declaration from before they moved in. But there is absolutely no reason why they cannot provide one covering their own time in the property.