Conveyancing Issues

Brown Wooden House Near Trees

Conveyancing is the legal transfer of property ownership from seller to buyer. While the conveyancing process follows a standard sequence, various issues can crop up that complicate or delay transactions. Conveyancers must work to investigate and resolve any problems to progress sales and purchases. This guide examines potential conveyancing issues that could derail transactions if not handled correctly, from boundary disputes to restrictive covenants and missing title deed meaning.

Boundary and Access Disputes

Disagreements over where property boundaries lie, or rights of way granting access through a property, frequently impact conveyancing. Examples include:

  • Neighbour disputes over the fence line or use of a shared driveway. These must be settled before the exchange of contracts.
  • Confusion over poorly defined boundaries is noted in deeds compared to physical boundaries. Further investigations are needed to confirm the legal extent of ownership.
  • Claims of a historic right of way across a property by previous owners. The seller may be forced to indemnify the buyer against future claims.
  • Third-party encroachment like a neighbour’s shed over the boundary. This could delay sales until the encroachment is removed.

Conveyancers carefully examine boundary details on title plans and raise enquiries to confirm whether any disputes are known. Buyers may delay exchanging until disputes are satisfactorily resolved.

Restrictive Covenants

These clauses, noted against a property’s title deeds, restrict how the property can be used or altered in future. Common examples include:

  • Materials or design constraints on fences and outbuildings. These must be complied with.
  • Limits on up to what height extensions can be built.
  • Prohibitions on certain business uses like shops or workshops.

Restrictions remain legally binding on future owners. The conveyancer checks all title documents for restrictive covenants and advises clients on the implications. Breaching restrictions in future could lead to court injunctions and compelled reversal of changes.

Rights of Way

Rights entitling third parties to access across a property also frequently impact conveyancing. These include:

  • Public rights of way – Longstanding paths and trails crossing private land. The property remains traversable by the public.
  • Private rights of way Allowing specific neighbouring properties or individuals to cross the land, such as to access a garage at the rear. The right of way usually remains with the sale of the property.
  • Wayleaves – Giving utility companies rights to access cables or pipes crossing the land. Wayleaves remain binding on new owners.

The conveyancer must confirm what rights of way exist and advise buyers accordingly. While access rights can frustrate buyers, extinguishing them can be very difficult if longstanding.

Missing or Defective Title Deeds

Where original title deeds setting out historical ownership are missing or defective, this casts doubt on the seller’s title. Issues arise such as:

  • Missing deeds – If the seller lacks sufficient deeds to fully evidence the chain of title. Further investigations are needed to re-constitute it.
  • Inconsistent names – Where the names on deeds evidencing sequential ownership do not match, suggesting a break in the title chain.
  • Forgeries – Rare but forged or doctored title deeds invalidate that link in the chain.
  • Deeds for only part of the land – Where deeds cover additional adjoining land subsequently separated. The title is unclear.
  • Unclear boundary descriptions – Ambiguous or general boundary references make the property extent uncertain.

The gap in title deeds does not necessarily derail sales but the conveyancer must fully investigate and clarify the title status before exchange. This may prolong the process.

Defects and Structural Issues

Physical issues with the property itself discovered during conveyancing can jeopardise transactions if serious. For example:

  • Structural movement cracks indicate potential subsidence or heave requiring underpinning. Further specialist assessments are needed.
  • Dampproofing failures or penetrating damp needs full diagnosis and potential remediation before exchange.
  • Major timber defects like woodworms require extensive repairs, which the buyer may insist on being done before purchase.
  • No evidence of required consent for significant alterations or extensions. The buyer can threaten to withdraw without adequate Building Regulations sign-off.
  • Asbestos materials used in construction require safe removal before the purchase is completed.

The buyer’s conveyancer tries to flush out any concerning defects or vices early through extensive pre-contract enquiries of the seller.

Neighbour Disputes and Complaints

Ongoing disputes between the seller and a neighbour over issues like noise, parking or tree roots can jeopardise deals. Buyers may fear becoming embroiled in the dispute themselves post-purchase. Disputes that could continue post-sale must be declared. Buyers can have ‘cold feet’ over inheriting acrimonious relationships.

Planning Refusals and Enforcement

Where the property has been the recent subject of refused planning applications or planning enforcement action over unauthorised works, buyers enter into conveyancing caution. Issues include:

  • Refused planning permission – The buyer walks away if their plans would also likely be refused, for instance building an extension.
  • Unapproved building works subject to enforcement – This remains legally outstanding against the property unless resolved before completion. The buyer may seek indemnity.
  • Future controversial local plans like building new roads, waste facilities etc nearby. These can deter buyers.

The conveyancer’s local knowledge and searches help uncover any pending planning issues.

Financial Issues and Claims

Financial problems affecting the property also regularly disrupt transactions including:

  • Mortgage shortfalls – If the seller’s mortgage redemption amount leaves insufficient equity to complete the sale. This can scupper deals.
  • Outstanding service charges – If significant leaseholder arrears are due from the seller with the threat of forfeiture and valve of sale. Must be paid before completion.
  • Covenant breaches – The buyer pulls out if faced with paying substantial costs to remedy breaches of leasehold covenants by the seller.
  • Pending legal claims against the property – Any claim being brought against the property over boundaries, covenants, access rights etc devalues the property.

The conveyancer aims to uncover financial skeletons like these early through detailed enquiries. Buyers can still withdraw with no obligation until the exchange of contracts occurs. After this point, issues become much harder to unravel from a binding deal.

Conclusion

Myriad conveyancing issues can unsettle transactions if not promptly resolved by conveyancers. From boundary ambiguities to structural defects, many potential deal-breakers exist. The conveyancer’s skill lies in foreseeing issues early through comprehensive due diligence checks, searches and enquiries.

They can then advise clients on how best to proceed, such as delaying the exchange of contracts until concerns are addressed. Where issues do escalate into disputes, conveyancers must guide clients toward solutions whether that involves legal claims or settlement negotiations. Smooth conveyancing requires preempting and containing issues before they put transactions at risk.

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