Body & Soul1 min ago
Is my solicitor responsible?
17 Answers
We bought our house freehold. But when we tried to erect a boundary fence on our drive the owner of next door complained to the council. The council say conditions of the planning state that we must provide 2 parking spaces for the benefit of next door and cause no obstruction so as to provide a turning circle . Heres the best bit we must park to the side of our house . We feel that this will effect the value of the property and will be difficult to sell . Also we must maintain a drive that is basically a free car park for next door . The council say our solicitor should have found this information in his search however he says that it is the seller at fault for non disclosure. I asked for a copy of the search and it clearly states planning consent for a 3 bed house conditions . Does anyone have any advice as i am at my wits end
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Your solicitor should have pointed this out that you share a driveway and the neighbours have access rights etc
If it's any consolation the neighbours will more than likely have the same in their conditions to provide the same for you. The erection of a boundary between the drives will limit its ease of use.
What did you need a fence for - was it just to define boundaries or was it to keep cats etc out ?
I don't think you should be at your wits end over it - it's not the end of the road and its very very common.
You need to see a the planning consent and its conditions - but your solicitor should have viewed them and advised you that there were access and parking rights.
If it's any consolation the neighbours will more than likely have the same in their conditions to provide the same for you. The erection of a boundary between the drives will limit its ease of use.
What did you need a fence for - was it just to define boundaries or was it to keep cats etc out ?
I don't think you should be at your wits end over it - it's not the end of the road and its very very common.
You need to see a the planning consent and its conditions - but your solicitor should have viewed them and advised you that there were access and parking rights.
Thanks for your reply. According to my solicitor there are no rights of way over my property and I have every right to erect a fence as there are no rights or easements included in the deeds the fact that I have to provide 2 parking spaces does not give access rights over my property to get to them. However the reason I am at my wits end is that I now have to pay to construct a driveway to the side of my property limiting valuable garden space, remove a rear boundary fence as it is on land that does not belong to us, apply for retrospective planning as the house was not built to original plan. So far Fees to surveyors, solicitors amounts to �4000 plus and counting. My solicitor will be looking to reclaim all this from the seller but my question still remains should he have checked out these conditions or is the seller at fault.
Thanks for your response By copy I mean a copy of my solicitors search which clearly states planning 3 bed dwelling conditions but does not say what they are. Only the land was sold with planning for a 3 bed house the seller built the house 3 years ago then sold it to me but did not tell me or my solicitor about the planning conditions.
Thanks for your response By copy I mean a copy of my solicitors search which clearly states planning for ( 3 bed dwelling conditions\) but does not say what they are. Only the land was sold with planning for a 3 bed house the seller built the house 3 years ago then sold it to me but did not tell me or my solicitor about the planning conditions.
OK. Let us go to the end of this first, which is that someone has to get the Land Registry to alter your Register to include the missing conditions. The Registrar will not act without a Court Order, so before you can be affected there has to be a Court case. Until the missing conditions are imposed upon you you are not damaged.
So
(1) the vendor cannot take any action against you
(2) the people who would benefit from the missing conditions cannot take any action against you
(3) only the Council can proceed against you with an Enforcement Order, which, if granted, should be coupled with an Order to the Land Registry to rectify the Register.
What to do? Erect the fence forthwith, write to the Planning Committe saying what you have done and ask them to consider the issue of an Enforcement Order and to issue it immediately if they are going to (there may be alternative solution to the problem whereby they need not).
Who is liable for the costs? Well, if the solicitor received a search answer saying "Consent for a 3 bed house conditions" and did not chase up the conditions he was negligent and is liable. "Caveat emptor" absolves the vendor.
And in anticipation of an Enforvement Order apply to the Law Society for a list of solicitors who specialise in cases against other solicitors and have one ready to go to in anticipation.
So
(1) the vendor cannot take any action against you
(2) the people who would benefit from the missing conditions cannot take any action against you
(3) only the Council can proceed against you with an Enforcement Order, which, if granted, should be coupled with an Order to the Land Registry to rectify the Register.
What to do? Erect the fence forthwith, write to the Planning Committe saying what you have done and ask them to consider the issue of an Enforcement Order and to issue it immediately if they are going to (there may be alternative solution to the problem whereby they need not).
Who is liable for the costs? Well, if the solicitor received a search answer saying "Consent for a 3 bed house conditions" and did not chase up the conditions he was negligent and is liable. "Caveat emptor" absolves the vendor.
And in anticipation of an Enforvement Order apply to the Law Society for a list of solicitors who specialise in cases against other solicitors and have one ready to go to in anticipation.
Thanks for your help Mustafatickl. One last question for you. We have not yet received an Enforcement order but have received a letter from the council telling us to submit new plans to retain the dwelling as built and to include the Conditions, failure to comply will result in an Enforcement order. Our Solicitor advise us to comply. we are now waiting to hear if our new plans submitted will be passed.
After reading your response I am now worried that we may not have done the right thing. Q Do you think by submitting new plans with 2 parking spaces for next door that I will be accepting that next door have rights over my land and will I have to then include this in our land registry title and Deeds.
After reading your response I am now worried that we may not have done the right thing. Q Do you think by submitting new plans with 2 parking spaces for next door that I will be accepting that next door have rights over my land and will I have to then include this in our land registry title and Deeds.
The answer to your second paragraph is I'm sorry to say an unequivocal yes, and you should not have done it.
When this sort of situation arises you must always take the Council to the brink, make them issue an Enforcement Order, contest it and then make a Court tell you what to do. The point is (1) that at the brink they may not issue the Order, or (2) they may modify it in your favour, and (3) the Court Order is the very basic fall back position, you have to do it, there is no alternative, and there is always the chance that you may defeat the Council. As it is you will have voluntarily given away what perhaps could have been your sole use land and yourself devalued your property and this fact may be used against you when you try to recover your loss.
When this sort of situation arises you must always take the Council to the brink, make them issue an Enforcement Order, contest it and then make a Court tell you what to do. The point is (1) that at the brink they may not issue the Order, or (2) they may modify it in your favour, and (3) the Court Order is the very basic fall back position, you have to do it, there is no alternative, and there is always the chance that you may defeat the Council. As it is you will have voluntarily given away what perhaps could have been your sole use land and yourself devalued your property and this fact may be used against you when you try to recover your loss.
1. If the property has been devalued, then the action taken was on the advice of the solicitor who could be called to account on this as well as his earlier negligence.
2. If it has not reached too advanced a stage you could withdraw the planning application.
3. Your solicitor seems to be clear that the vendor is responsible. Perhaps he is - it depends on what information he was asked to give in the pre-contract enquiries and on whether there is considered to be an obligation on him if (as seems to be the case) what he built is not in accordance with the planning permission he had. You should ask your solicitor for his reasons for thinking the vendor is responsible.
2. If it has not reached too advanced a stage you could withdraw the planning application.
3. Your solicitor seems to be clear that the vendor is responsible. Perhaps he is - it depends on what information he was asked to give in the pre-contract enquiries and on whether there is considered to be an obligation on him if (as seems to be the case) what he built is not in accordance with the planning permission he had. You should ask your solicitor for his reasons for thinking the vendor is responsible.
Hi all Ive just got off the phone to the solicitor and raising all the issues. He is positive that by submitting the new plans will not give any rights for next door to park on my property as the council do not have the power to give anyone rights to my land. They can make me comply with the conditions even though they will never have the legal right on my land.Now I don,t know what to think. Hellllllllllllllllllllllllllllp
But the right to park on your land may already have been granted in the neighbour's Land Registry Registration. Have you had a look? If not go here http://www.landregisteronline.gov.uk/
and spend �3 to look at their Register, If there is a reference you will have to spend another �3 to see the Plan. Make copies to keep.
I had also meant to mention that if you have a Mortgage Lender I trust that you are keeping them abreast of all this as it adversely affects the value of their security.
and spend �3 to look at their Register, If there is a reference you will have to spend another �3 to see the Plan. Make copies to keep.
I had also meant to mention that if you have a Mortgage Lender I trust that you are keeping them abreast of all this as it adversely affects the value of their security.
You should ask your solicitor to confirm in writing what he has told you. Then - if you find you have to take action against him for negligence - he will not be in a position to put a "spin" on what he has told you verbally.
Also, he seems to be expecting to get recompense for you from the vendor. Even if this goes to the stage of a CCJ being obtained, it doesn't necessarily mean the vendor will pay up. From your point of view, it would be far more secure to get your recompense from your solicitor, as it would then be paid from his PI insurance. To do this you will have to either employ another solicitor to take action against him, or go through the complaints procedure (see Law Society website).
Also, he seems to be expecting to get recompense for you from the vendor. Even if this goes to the stage of a CCJ being obtained, it doesn't necessarily mean the vendor will pay up. From your point of view, it would be far more secure to get your recompense from your solicitor, as it would then be paid from his PI insurance. To do this you will have to either employ another solicitor to take action against him, or go through the complaints procedure (see Law Society website).
Let us be clear
(1) from all that you have said previously, the Council has the power and the means to legally force you to have parking on your freehold on the terms of the original or any new planning permission. They also have the power and the means to unilaterally remedy your Registration at the Land Registry to reflect this via a Court.. That is unarguable fact
(2) you avoid reference to the Register and use the word Titles. You must understand this, the only thing that counts now is what is on the Register at the Land Registry, and
(3)(a) your mortgage lender's 25% is important to him, and (b) at the moment he trusts you. In honour if not also in duty you should report this matter to him and allow him to take what view and action he wishes
(1) from all that you have said previously, the Council has the power and the means to legally force you to have parking on your freehold on the terms of the original or any new planning permission. They also have the power and the means to unilaterally remedy your Registration at the Land Registry to reflect this via a Court.. That is unarguable fact
(2) you avoid reference to the Register and use the word Titles. You must understand this, the only thing that counts now is what is on the Register at the Land Registry, and
(3)(a) your mortgage lender's 25% is important to him, and (b) at the moment he trusts you. In honour if not also in duty you should report this matter to him and allow him to take what view and action he wishes
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