Solicitors >:( >:(

[nickliv]

I'm in the process of buying a house (well, a building plot really) in Scotland

There's a neighbouring property over whose landI need access to lay a drainage pipe, but there's no undeniable allowance for this made in the neighbours title deeds. The neighbour is an amenable sort, and is happy as long as the pipe isn't going under a building (fine by me) and his land is still a field with an unconverted barn in it, so damage etc. isn't going to be a problem, AND he'll be sharing the drain across his land

BUT

My solicitor's got a bee in her bonnet about it, and is recommending that I don't go ahead with the purchase until the neighbours deed is changed. The chap I'm buying my plot from isn't really at fault, but is left hanging in limbo (as are we, really) as his solicitor (who works for the same firm that drew up the neighbours deed - go figure) fail to accept that there's a problem with the deed in the first place, and we've reached an impasse.

Does anyone have any experience of geting title deeds changed, and how long does it take? I'm happy to get them changed after the sale's gone through

Also we've sold our house and we've moved to a rented cottage near the barn while we do the work, add to that the impending architechts fees, and we'll be about 15K out of pocket if we walk away now.

[garyfrogeye]

Hi Nick,

I'm not a Solicitor or familiar with the Scottish system of buying property so please take what I'm saying with a massive pinch of salt. But I would suggest that your solicitor is correct in asking for a "Deed of Variation" as the current neighbour may be amenable and have no intention of moving or selling. But things can happen and that might change. Then who's to say what he or the next owner may allow. There is also the matter of your liabilities to him should anything happen with the drainage and potential contamination.
My only suggestion is that you may be able to pay a small indemnity charge which if agreeable would indemnify you against any unforseen circumstances. It's woth asking your solicitor if they are able to arange for that.
Again I don't know how it works in Scotland as I believe that once a price is agreed, it cannot be changed. But here in England it might be possible for the current owner to allow a retention of some of the completion cost which could be held by the solicitor until the deed of varation is sorted out.
Assuming that your neighbours property is Freehold and he is the freeholder, it would only be a matter of his soliciotor getting hold of the deeds from the lender (assuming that he has a mortgage on it), making the changes and then registering the amended deed with land registry.
There is also the fact that some kind of planning/environmetal permission may be required which could also extend the time scale.
It might be worth asking your solicitor that if this cannot be easily resolved is she recommending that you pull out or is she just covering herself by highlighting it.
Not really the answer you were looking for but it may be a bit of help

[nickliv]

Cheers Gary

I think she's probably covering herself by highlighting it, but she does seem to have turned it into a points scoring exercise against the other side. The neighbour is unlikely to sell in the near future - not within the next 2 years at least.

Witholding part of the purchase cost is an option (We've already done it to guarantee mains water connection)

[garyfrogeye]

Nick,

I've seen a few examples of solicitors turning it into a personal thing with the other side's solicitor.
Remember that she works for you and not the other way around (although it might not always feel like it).

Try not to get negged out by it all and keep in mind the big picture and the long term benifits.

[Fran]

Not sure of the differences in Scotland, but I deal with English property law on a daily basis. 

I reckon she is covering herself so that if it all goes wrong and the neighbour won't grant you access across his land, that you dont suddenly turn round and say that she let you go ahead and buy a worthless bit of land that you cant use for the purpose you want.

I know the neighbour is fine n dandy now, but things can change and gentlemen's agreements dont always turn out the way you intend.

If you are really fixed on this, see if she will accept a letter from you saying that she has advised you fully and you understand all the possible consequences (assuming you do!!) and that you still wish to go ahead without the access being formalised notwithstanding her advice and you will not hold her in any way responsible should there be any problems in the future.  That might be enough for her.

In England we would need a Deed of Easement which isnt a particularly tricky thing to sort out if everyone is agreeable.  So unless there really is an urgent reason to go ahead without the access being formally sorted I would stick on the safe side.

Good luck! 

F

[nickliv]

The seller's making convincing noises about puting it back on the market.......

Thanks for ALL the replies so far BTW, you're being really helpful. - a fresh pair of eyes is a boon at a time like this.

[Lawnmower Man]

The seller's making convincing noises about puting it back on the market.......

I had a similar sorts of situations. When buying and selling.     

On one purchase we were  asking for a date to exchange contracts the Agent told us he had recieved a better offer.  I just said "OK I'll instruct my solicitor to stop the working on the purchase.  Good Day" and put the phone down.
A few seconds later the phone rang the agent wanted to clarify that I nolonger wished to purchase.    I just said  "Well we have the mortgage approved and Searches completed so we are willing to buy at the agreed price. "      The deal went though.

My last sale the purchaser tried to put pressure on me for a date to exchange.  But we didn't have anywhere to go and we where looking for a place
to rent to enable us to exchange and complete.  He gave me an ultimatum.  "Exchange by next seven days or the deal is off".  I double checked with him that he did mean he would drop out.  He said that was his intention.   I called him the next day.     I told him we still didn't have anywhere to go but did have a couple of place that we where waiting to hear if we had secured the rental on.   But that we couldn't be sure.  I then asked if he would be willing to sell the search results to another purchaser.  I pointed out it would be to our mutual benifit as he could recover some of his costs and it would speed up the time taken to complete for a new purchaser.  It sounded to me like he was about to burst into tears.   He extended his dead line and the deal went though.

t.

[mgmark]

Nick,

Whilst the issue may seem petty, the advice is very sound, and a variation to the deed should be neither difficult nor time-consuming for solicitors to sort out, and would give you the right to access his land to lay the drain and, in the future, to maintain or repair it.  You also mention about him connecting into it.  I would suggest then that it is vital to have the various rights and responsibilities set out.  Otherwise, it could go horribly wrong at some point in the future - for example, you may be faced with the drain being blocked by his actions and you having to fix it, or worse still , its blocked up for you, but flows for him and he won't let you on the land to fix it.  Finally, it could also affect matters in the same way with a potential purchaser, as and when you might come to sell your place.

MG Mark

[nickliv]

Mark.

That's just the sort of level headed advice I'm looking for:- it's not rocket science to change the deed after the event, but when changing it, it'd be a good idea to get things completely tied up legally. What I might do, is lay 2 drains, one for me, and one for him, lying side by side. It'll cost a little bit more money to do it, but what price peace of mind eh?

[mgmark]

Nick,

No problem, but do be very wary of completing without having sorted out the deed first.  It really isn't difficult and would follow a fairly standard easement wording - I would be asking the other solictors why they have a difficulty with that thought, particualrly as your neighbour appears amenable. 

By the way, you haven't mentioned what type of drain - is it for surface water or foul drainage?

MG Mark

[nickliv]

both

[Piglet]

Nick

This is my field of work but I have no knowledge of Scottish law.  You've got good advice already.  FWIW, we all know how easy it is to rush into doing something against advice, most of the time we get away with it but ocassionally it goes tits up on us.   

By the sounds of things there isn't a great risk in completing without the Deed in place as its in the neighbours interest as well BUT can you live without it if it doesn't come off?   Would you have paid less for what you're buying without the rights? 

As Fran says if you're going against your solicitors advice she will want clear written instructions from you to cover herself against problems if it does go wrong in the future.

The Seller might be talking about remarketing but he's likely to hit the same problem with a new buyer so he'd be better off putting his efforts into resolving this issue rather than pressurising you who can't do much about moving things on.   You say its not really his fault but he is the one who seems to be selling a development plot with no access for drainage - if he had done his job properly he'd have all his ducks in a row by now and wouldn't be having to wait.   

Don't be pushed into it without the rights to install drainage - once you've completed the neighbour will know he's got you over a barrel and his stance might change.  Personally I think you'd be barking to go ahead at this time. 

[Steve Pyro]

Nick, taking a left field view, there are alternatives to laying foul / rain drainage pipework.
We have a septic tank system with associated pump / leach field in our back garden and it is very efficient in dealing with all our waste water.  No waste water goes out to the street, we only pay the water company for potable water supply.

[nickliv]

Steve

There IS a plan B, and a plan C.

Plan B is to obtain rights of access through the land currently owned by the farmer around the neighbours ground, the farmer is in agreement, but the easier option is the neighbours land.

Plan C is a pumped system which will route through the sellers land, as there ARE rights, but a hill to overcome (Hence the pumped system)

Plan D might be a reed bed system, etc. but the soil is clay, so you do tend to just get puddles here, so plan D might not be a go-er.

[mgmark]

I love this forum - as well as the banter and fun, it brings forth a wealth of knowledge, experience, sound advice and ideas about all sorts of subjects!

Nick,

As far as surface water drainage is concerned, piping on your land fed to a tank (sized to hold a calculated amount based on average rainfall and water useage) would capture the drainage run-off from buildings and reduce (or even negate) the need for run-off drainage external to your land, as it would be free water to be used for the myriad tasks that need water, but don't involve drinking the stuff.  Very green. 

MG Mark