How to deal with title defects – Lack of rights of way and lack of covenants for maintenance
Title Deeds are legal documents that establish the ownership of a person over a piece of property. Sometimes title deeds may be “defective,” which means that it may include something which is not wanted or have some important piece of information missing from it.
Lack of Rights of Way and lack of covenants for maintenance and repair are two of the most common title defects. The proper way to deal with these defects is discussed below:
Dealing with Lack of Rights of WaySometimes the deed may not be very clear about the right of way to the property through a road that serves it. This means that it may become very difficult for the owner to access the property should any disputes over the road arise in future.
Buyer’s conveyancing solicitors, during the local search process before buying, will check the Index Map and establish who owns the roads that lead to the property. Sometimes it may be difficult to trace the owner, but that doesn’t mean that the road is not owned by anyone. To prevent any disputes in future over Rights of Way, it is necessary to obtain a Statutory Declaration.
The seller must make a declaration in accordance with the Statutory Declaration Acts of 1853. The seller declares that he has used the road without any objections or payments whatsoever for the time period that he has been the owner of the property. The declaration may even be given by a tenant who uses the property regularly, or by an independent person who lives in the area, in case the owner has not been visiting the property or using the access roads.
Dealing with Lack of Covenants for Maintenance and RepairThis particular defect is often found in deeds where the access road or a drain that serves the property is private. Private roads and sewers are not maintained by public authorities; it falls upon each of the property owners to pay a fair share of the cost of repair and maintenance. Even if there is a clause that specifies that property owners are jointly responsible for the upkeep of the road or sewer, in practice it may be difficult to enforce the covenant because it is a positive covenant. Positive covenants are legally enforceable only between the parties who originally entered into the agreement. When the property changes hands several times, it becomes difficult to trace the original owner and a new buyer may not be able to legally enforce the covenant against another new property owner who refuses to pay his share for maintenance.
The proper way to deal with this situation is for the original builder to set up a management company which will be responsible for collecting contributions for maintenance. There must also be a restriction that the property may not be transferred to a new person unless he enters into a covenant with the management company directly.
Many a time though, this approach may not be practical due to time constraints or because the property may have been bought second hand, without any preceding covenants. In this case, the conveyancing solicitor will report the situation to the buyer and if the buyer has a mortgage lender, their instructions are usually taken into account while proceeding with the buying.
If the property is leasehold, as opposed to being freehold, then the covenants that are in the lease are always legally enforceable by the landlord.
Update
As from 1st October 2011 ownership of private sewers and lateral drains will change in accordance with The Water Industry (Schemes for Adoption of Private Sewers) Regulations 2011
From October 1, 2011 property owners will no longer be responsible for certain sewer pipes that connect their homes to public sewers. New legislation will transfer responsibility for these pipes, called private sewers and lateral drains, to Southern Water. Property owners are often unaware that they are responsible for these pipes until they face a repair bill, causing confusion and leading to disputes between neighbours. The Government wants clear ownership and better long-term maintenance for the sewer network.
Property owners do not need to do anything, as the transfer will happen automatically on October 1.
Currently, property owners are responsible for private sewers and lateral drains, which are the sections of sewer pipe or drain which are shared with another person's property, or run through another person's land. After the private sewer transfer there will only be public sewers (owned and maintained by the sewerage companies) and private drains (the responsibility of property owners).
Photo courtsy: Mr. T in DC
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