Public Right of Way Issue

London68164

Hello everyone. After a long journey we were finally given some good news last week when developer said they were ready to serve completion notice on our new build however in that phone call also dropped the bombshell that there is a public right of way crossing our property. 

Now they say they have got a comfort letter from the council confirming that it will be corrected (which I assume means diverted) and are just awaiting a ‘wet signature’ to finalise this however are not sure our lender will accept this comfort letter as sufficient documentation for them to lend on the property. They have estimated this process could take 4-6 weeks but from some research online it looks as if this could take much longer if requires consultation etc?

I don’t understand how this appears to be the first time that anyone has noticed this issue/made us aware of it and I also don’t understand how they can serve notice of completion with this legality outstanding? 

After having a look back to the local authority search which was dated 2018, there is mention of the PROW in question and a plan is there but obviously being not legally minded and first time buyers this went over our heads, is this is our fault or should our solicitor picked this up and alerted us to this fact?

Finally the new build completion notice stipulates necessity to complete within 10 days - with this PROW outstanding and we would like it resolved prior to completion, would we be financially liable if we now did not want to complete based on this information? 

If we were to proceed what would the long term implications of this PROW issue have on us? Affect property value? Difficult re-selling in the future?

Any help at all would be very gratefully received and sorry for such a long essay!

teachfast

Have you exchanged contracts yet? If not you can walk away, just losing your deposit (usually £500 or so). Or you can sit it out until the situation is resolved. I doubt they can sell to anyone just now with the PROW in place so I doubt they will withdraw from the sale. 

If you've exchanged contracts it's a lot harder to deal with. You will need to speak to your broker/lender first thing tomorrow and try to sort it depending on what they say. 

Your conveyancer definitely should have spotted this and alerted you explicitly.  You may have recourse against them if you end up out of pocket.  

London68164

teachfast said:

Have you exchanged contracts yet? If not you can walk away, just losing your deposit (usually £500 or so). Or you can sit it out until the situation is resolved. I doubt they can sell to anyone just now with the PROW in place so I doubt they will withdraw from the sale. 

If you've exchanged contracts it's a lot harder to deal with. You will need to speak to your broker/lender first thing tomorrow and try to sort it depending on what they say. 

Your conveyancer definitely should have spotted this and alerted you explicitly.  You may have recourse against them if you end up out of pocket.  

Yes exchanged few weeks back so deposit paid unfortunately 

AdrianC

London68164 said:

teachfast said:

Have you exchanged contracts yet? If not you can walk away, just losing your deposit (usually £500 or so). Or you can sit it out until the situation is resolved. I doubt they can sell to anyone just now with the PROW in place so I doubt they will withdraw from the sale. 

If you've exchanged contracts it's a lot harder to deal with. You will need to speak to your broker/lender first thing tomorrow and try to sort it depending on what they say. 

Your conveyancer definitely should have spotted this and alerted you explicitly.  You may have recourse against them if you end up out of pocket.  

Yes exchanged few weeks back so deposit paid unfortunately 

Then it's pretty much academic, and you're buying...

What's so scary about a RoW, anyway? Public footpath, I presume? We have one comes in our back gate, across the garden, right past our back door, the garage, and down to the road. They're common round here.

Did you never look at an OS map?

Was your solicitor "recommended" by the developer...?

davidmcn

London68164 said:

Now they say they have got a comfort letter from the council confirming that it will be corrected (which I assume means diverted) and are just awaiting a ‘wet signature’ to finalise this however are not sure our lender will accept this comfort letter as sufficient documentation for them to lend on the property. They have estimated this process could take 4-6 weeks but from some research online it looks as if this could take much longer if requires consultation etc?

Well, what stage has it actually reached? Could be that all the consultation etc has already been done and all that is awaited is a final deed sitting on the desk of the council's signatory - in which the council saying "yes, we'll get this signed" is probably fine. I doubt this has come as a last minute surprise to the developers or the council, it will have been flagged up at planning if not earlier. 

teachfast

AdrianC said:

London68164 said:

teachfast said:

Have you exchanged contracts yet? If not you can walk away, just losing your deposit (usually £500 or so). Or you can sit it out until the situation is resolved. I doubt they can sell to anyone just now with the PROW in place so I doubt they will withdraw from the sale. 

If you've exchanged contracts it's a lot harder to deal with. You will need to speak to your broker/lender first thing tomorrow and try to sort it depending on what they say. 

Your conveyancer definitely should have spotted this and alerted you explicitly.  You may have recourse against them if you end up out of pocket.  

Yes exchanged few weeks back so deposit paid unfortunately 

Then it's pretty much academic, and you're buying...

OP was concerned about the lender's position in this, so not as simple as "you're buying".

AdrianC

teachfast said:

AdrianC said:

London68164 said:

teachfast said:

Have you exchanged contracts yet? If not you can walk away, just losing your deposit (usually £500 or so). Or you can sit it out until the situation is resolved. I doubt they can sell to anyone just now with the PROW in place so I doubt they will withdraw from the sale. 

If you've exchanged contracts it's a lot harder to deal with. You will need to speak to your broker/lender first thing tomorrow and try to sort it depending on what they say. 

Your conveyancer definitely should have spotted this and alerted you explicitly.  You may have recourse against them if you end up out of pocket.  

Yes exchanged few weeks back so deposit paid unfortunately 

Then it's pretty much academic, and you're buying...

OP was concerned about the lender's position in this, so not as simple as "you're buying".

The lender won't pull out between exchange and completion. They wouldn't have allowed exchange if they were concerned.

davidmcn

AdrianC said:

teachfast said:

AdrianC said:

London68164 said:

teachfast said:

Have you exchanged contracts yet? If not you can walk away, just losing your deposit (usually £500 or so). Or you can sit it out until the situation is resolved. I doubt they can sell to anyone just now with the PROW in place so I doubt they will withdraw from the sale. 

If you've exchanged contracts it's a lot harder to deal with. You will need to speak to your broker/lender first thing tomorrow and try to sort it depending on what they say. 

Your conveyancer definitely should have spotted this and alerted you explicitly.  You may have recourse against them if you end up out of pocket.  

Yes exchanged few weeks back so deposit paid unfortunately 

Then it's pretty much academic, and you're buying...

OP was concerned about the lender's position in this, so not as simple as "you're buying".

The lender won't pull out between exchange and completion. They wouldn't have allowed exchange if they were concerned.

The lender doesn't "allow" exchange. They're not a party to the contract. If they're not getting a marketable title at completion, they won't allow the loan funds to be used. 

Davesnave

Can you see where the footpath could easily be re-routed?

While it's not uncommon for public RoWs to go through people's gardens for historic reasons, the  creation of a new development would usually involve re-routing to avoid that situation at an early stage of planning. I'm with the idea that this has been agreed and the relevant paperwork's  there and ready to go, so I wouldn't panic yet.

teachfast

I'd have thought this counts as 'material change before completion'?

ciderboy2009

teachfast said:

I'd have thought this counts as 'material change before completion'?

Would it though?  The PROW would have been there before exchange. 

It's something I would have expected the solicitor to have picked up on though.