Rights of access issues pre-completion?

by Readers Question

14:29 PM, 31st October 2018
About 2 weeks ago

Rights of access issues pre-completion?

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Rights of access issues pre-completion?

Is it possible to proceed with exchange and completion on a property, by signing a disclaimer for your solicitor and lender, if there are outstanding rights of access issues with the new property?

I am buying the property, it’s a detached 3 bedroom freehold property, with a detached garage to the rear. You cannot access the garage from the rear garden other than walking through a gate, over a neighbours driveway. However, you can access from walking along the road from the front of the house.

The house was built in 1980ish, there is nothing on Mid Devon Planning that goes back that far to show the original drawings.

The current owner only bought the property in 2014, using the same conveyancers! But, clearly nothing was rectified then. Land registry are going to close the application to have access over the neighbours driveway, unless the sellers conveyancers make contact or answer the case workers questions.

I asked my solicitors if we can sign a disclaimer, so as not to use the driveaway, until the matter is resolved, which they initially agreed, but then came back advising that the lender (Halifax) needed to know that the matter had been resolved.

Is this true? Why, if the access is denied, or if the seller had never put any details of rights of access, would it be able to go through, but not because of that. It doesn’t devalue the property. Potentially, the gate has been at the back of the garden since 1980!

The estate agent who also sold the property in 2014, is convinced that there was an indemnity insurance to cover this too, but had no evidence.

I’ve been waiting since my property sold on 21 September for things to be sorted. I feel very stressed about it all and just want to exchange and complete! I’m currently renting close by.

I look forward to any assistance in this matter.

Samanth



Comments

Neil Patterson

14:34 PM, 31st October 2018
About 2 weeks ago

This is something that is going to need the solicitor and the valuer to work on with the lender (Halifax).

If they can be convinced it will not affect their security or the value of the property either way then they may allow completion.

If the solicitor can find the indemnity insurance (they must have it on record still from 2014) then that will assist greatly unless it is only insuring the previous owner and not the property.

H B

8:08 AM, 1st November 2018
About 2 weeks ago

Nice to show a picture of a Japanese house, although not sure of its relevance ( '_' ).

Kate Mellor

13:44 PM, 1st November 2018
About 2 weeks ago

There are four courses of action I can think of. The first is for the vendor to request the file from their conveyancer from 2014 and find out whether there is an existing indemnity policy.
The second would be to check whether it is too late to take out a policy yourself.
The third is to request permission from the neighbour to grant access on foot across their driveway (I’m assuming it is a pedestrian gate, rather than vehicular). It may be that if they are concerned about creating a permanent right of way, they would agree to an annual “peppercorn” charge for which you would have access through your gate as this wouldn’t create a permanent legal right of way.
And finally the fourth option may be to have the vendor remove the gate so that the access becomes a moot point. No gate - no access required. This supposes that the access to the garage from the rear garden is not essential. You could always reinstate the gate at a later date if desired.

The problem I’ve come across in recent years is that lenders don’t have in-house legal teams. Unlike the large High Street lenders who do. They rely solely on advice from solicitors who are conveyancing for the buyer or owner and also representing the bank and as such these solicitors will NOT take a common sense view on things because they’ll be risking liability to the banks. An in-house legal team actually work for the bank and they WILL take a view on niggly little things which don’t pose any real threat to the banks security.

Good luck, I hope you can resolve this. We had to get the farmer who owns the bottom of our access road to sign a document giving us access to our house when we bought it as there wasn’t a right of way in writing (despite it being historically used since the property was built over 100 years ago & being the ONLY access road) fortunately he didn’t cause us any problems and was happy to sign it.

.

Steve B

8:11 AM, 3rd November 2018
About 2 weeks ago

Reply to the comment left by Kate Mellor at 01/11/2018 - 13:44
We had a similar issue with our purchase and although it took time being batted back n forth, it was eventually resolved by ascertaining there had been ‘an assumed and regular right of access’ for the previous x years since the house was built. In this case it was 24 yrs but the figure needed was less than that. I might add that this was in relation to a legal right to access the property from its pedestrian and vehicle gates BOTH of which are in a private (non adopted) lane and no other method of entry exists. Hope you get this sorted.


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