Solicitor failed to spot massive planning application ...

nightsong

So, you excellent people provided very useful answers to my last questions about the maisonette my son + gf are trying to buy. Please can I ask for further opinions about a new issue?

We decided to do some research of our own over the weekend and you can imagine our surprise/amazement/shock when we discovered a massive planning application which would seriously impact the maisonette. This application was submitted to the council a few weeks before we instructed the solicitor, and is very much a live issue with huge local impact, yet she has made no mention of it in the last four months.

!!!!!!!!!!!!!!!!!!!!!!!!!!!!

What should we do about it? A lot of the work she has done, and is charging us top dollar for, is potentially redundant since the whole sale now hinges on whether or not the maisonette will continue to have access to its garage (an obscure point about rights in the lease) if the development goes ahead. If not there is nowhere sensible to park and they don't want the property.

Thanks

davidmcn

Where is the development site in relation to the maisonette? Have the solicitors carried out any searches yet? Searches are generally of the property itself (and you'd hope to be told of any planning applications actually notified to the sellers i.e. for immediately neighbouring properties), but that's not necessarily going to cover things in the general vicinity.

Surely the point about access rights in the lease is relevant whether or not there is a live planning application?

Fuzzyness

i'm not sure why you are expecting your solicitor to monitor recently submitted planning applications in the area. i'm guessing that that might be out of the remit of their instruction, unless you specifically asked them to do it?

and just because an application has been submitted it doesnt mean it will be granted planning permission.

nightsong

Oh OK- so this is something people are supposed to do themselves? I thought it would form part of the searches (which have been done).

There is a large area of private land immediately adjacent to the maisonette, currently informally used as a car park by locals, and a pub which is attached to the terrace containing the maisonette. The application is to demolish the pub and build 28 flats on the car park. Access to the garage is through the informal car park which will be built on. So it is highly relevant to the maisonette. Yes the rights issue is relevant regardless, I agree - but without the planning application it would be just one of many issues to be resolved. As it stands there is no point investigating other matters if the access to the garage won't continue.

HouseBuyer77

Standard search packs often don't include planning application searches (other than planning applications that are about the property itself). You can pay extra and get an application search. Your solicitor should have mentioned this as an option.

With regards to the garage access presumably you have some right of way over the car park to get to it? If so the development will have to take that into account. If there's a way for them to distrupt the right of way (or it doesn't exist) the solicitor should have pointed that out, planning application or no.

G_M

I have to admit I believe you are right that solicitors should do searches that cover the locality - but they don't. The standard searches cover the property itself.

Enquiries sent to the vendor ask if they know of any local planning applications, and vendors have to answer honestly - though if they don't the come-back on them is difficult. A buyer would have toprove they knew of an applicatin and lied (hard) not that they should have known and didn't.

I would personally always go into the LA Planning dept and look at
* the Local Plan and
* local applcations

There's no substitute for doing research yourself before spending £X00,000!

As for the garage, reading the lease should clarify the access rights issue. What does it say?

And if the development will prevent access, then raise an objection to the planning application!

gembert83

Unless a specific request was made for what is known as a Plan Search/Plan Search Plus then it would not have been revealed. When a local authority search is carried out they are property specific, they do not reveal planning apps in the general area. How is it affecting the maisonette? If the garage is demised then it is owned by the property - it cannot be taken away, alternatively if the garage is not included within the demise but is a right granted to use the same then that right will continue (although there is the possibility on lease extension in the future they would try and alter that right).

lika_86

Nothing to do with the solicitor, some will check for an additional cost but it's not part of the conveyancing process.

Rights to access the garage should be part of the enquiries.

nightsong

Thank all ...

The garage is owned freehold by the owner of the maisonette, though the maisonette itself is leasehold (999 year lease). Access is the issue. I agree that the lease should reveal this but the lease is "defective" according to the solicitor, has been changed more than once, and as far as I can see from my non-expert reading of it, it's not clear. Up to now the locals have been accessing the land and parking on it without problems for 35 years, and the maisonette owners (and shops below) have been parking in their respective garages and bays, but I understand that this doesn't constitute any legal right of access.

G-M thank you, my guess is that our solicitor did ask the vendor's solicitor about planning applications and the response was non-existent or wrong - the vendor's solicitor is a disgrace to the profession. Interesting to hear that it's hard to have any redress about this.

There are pages of objections to the planning application on the council website! It's a very contentious issue locally and the MP is involved.

I am beginning to be glad the vendor's solicitor is so useless as we wouldn't have known about the planning application without all these delays forcing us to look into it ourselves.

So if the access issue can't be resolved from the lease is there any other way to establish it, or is that the end of the matter?

moneyistooshorttomention

Would googling "prescriptive rights" come up with any useful info. on this?

As you say - people have used the access to these garages for many years - then they may have gained the right to keep having that access via "prescriptive rights".

That's assuming that there wasn't an official Right of Way down there on that land for garage access - which would be my first point of call to check out personally. I can't see how the development could be built literally on peoples ROWs - so I'd be checking the plans for it to see where the ROW was sited on the plans. If I couldnt find that ROW - then I'd ask the Council Planning Officer to point it out to me and take it from there (according to their response).

HouseBuyer77

If the garage is freehold, then the maisonette's lease may be irrelevant, the right of way to access the garage could lie with the freehold.

Still sounds like a bit of mess, fingers crossed you have a decent solicitor that can resolve it for you. If it's been used in the same way for 35 years this may help establish rights if they don't already exist(other posters will know more). Obtaining any proof you can find as to how it's been used could prove useful.

I'd say the new development is a bit of a red herring, the issue with access exists whether or not it was happening, though it does serve to highlight why it is important rights of access are present and understood!