Conveyancing Problems: What Do Defects in Title Look Like?
Day 23: Everything You Need To Know About Buying and Selling a House or a Flat in 31 Daily Bite-Sized Chunks -“Conveyancing Problems: Defects in Title”
Conveyancing Solicitors define a defect in title as not just as a problem with the legal title to the property. Defects can also involve a lack of documentation or the potential for a liability not yet identified or claimed such as a Chancel Repair Liability
It might be that in Conveyancing terms you have been naughty (however unwittingly) failing to comply with current planning laws or building regulations.
There has been much legislation over the last decade requirement certificates from qualified contractors for electrical works, central heating and new windows.
You may also have done something to your property in contravention of a covenant over the property.
Covenants fall into two categories; Restrictive Covenants and Positive Covenants.
Firstly, and more commonly, restrictive covenants e.g. can restrict your ability to add or amend the property without a third party’s consent, or even in extreme cases an absolute ban on doing anything to the property.
The good news is that recent decisions by the Courts have tended to take a more pragmatic or some might say common sense approach to interpretation of longstanding covenants.
There have been recent examples of covenants being challenged where the original person or persons who had imposed the covenant had long since died
Secondly, positive covenants where the Seller of a property has failed to carry out an obligation e.g. to maintain a fence or boundary.
Lack of Documentary evidence is another defect in title where written rights to use a footpath, a lane or even a road neighbouring a property simply do not exist
What Happens When a Conveyancing Defect is Discovered?
A Conveyancing solicitor’s first port of call where such defects are discovered is to ask for the defect to be rectified.
Where a document is missing, say a death certificate, the process is simple. You ask for a copy or approach the relevant Probate Registry if one cannot be located
Where there is evidence of a long standing usage of a footpath for example, the Seller may be asked to swear a document known as a Statutory Declaration.
The Statutory Declaration will detail actual personal knowledge of circumstances which have existed over time.
Some situations, however, may require fresh deeds to be drawn up called Deeds of Rectification.
The difficulty in modern day Conveyancing is that the time taken to track down relevant parties or to seek permission for works carried out many years ago can be very time consuming and costly.
This is where Conveyancing Solicitors turn to Insurance Companies. The Insurance Company will issue a Defective Title Indemnity Policy to cover the defect.
As always if you have any problems or queries your Conveyancing Solicitor will be more than pleased to help and advise