Discovering a problem with the title deeds of a property can be very stressful for the owner. Sometimes deeds are missing, badly drafted or there may be planning problems, mapping errors, rights of way or other easements, possessory title claims, boundary disputes or other problems that prevent a sale proceeding or a refinance of the property. The good news is that most title flaws can be resolved. We have been acting for clients in property transactions for over thirty years and have seen and resolved many problems that have arisen with title deeds. Sometimes the deeds have to be reconstructed, counsel’s opinion or an architect’s opinion may be necessary, planning retention has to be secured or an insurance bond needs be put in place. Whatever the problem we have the contacts and the expertise to resolve the situation quickly and cost effectively.
Most title deeds will contain a map upon which the property is outlined or hatched (shaded or lined) in a distinctive colouring. If the map has been well prepared by a professional person such as an Architect or Land surveyor it will clearly highlight:
- The land upon which the property is built;
- The nearest main road;
- The right of way from the main road to the property;
- The scale of the map;
- The location of a well if applicable;
- The location of a septic tank showing the percolation area if applicable;
- Any easements the benefit of which the property enjoys;
- Any easements to which the property is subject;
- The date it was prepared;
- The name of the mapper and his or her qualifications.
- Any other relevant datails.
Regrettably many of these features, if missing, can lead to problems or disputes with neighbours at a later date. The drafter of the deed to which the map is attached may not have been aware of the easement and it would not therefore be referred to when the title deed was created and may only become problematic years later if for example two neighbours are in dispute or the property is being sold.
An easement is a right affecting land for example a right of way, a right to light, a right to support, a right to water. Contrary to what many believe, there is no such thing as a right to a view. For an easement to exist there must be a ‘dominant’ and a ‘servient’ property and the easement will always benefit the dominant property. The difficulties with easements arise when they are not recorded in the title deeds. They are frequently acquired over time and therefore the purchaser of a property must make careful enquiries about the possible existence of easements that are not appearing in the title deeds. If a farmer sells a landlocked field and retains ownership of a field over which the access from the main road to the sold land exists, then the retained land will be subject to a right of way in favour of the purchaser even though this may not be recorded in the deed of sale. The potential for dispute is there immediately since the seller may not have a problem with a right of way for agricultural use whereas the purchaser may intend to build a house on the land and require a right of way for residential use. In this example the sold land is the ‘dominant’ property and the retained land over which the right of way exists in the ‘servient’ property. It is important to understand that the right is for the enjoyment and use of the land and is not personal to the purchaser/owner. Therefore it cannot be sold separately to the land.
Easements may be acquired by express grant, by Statute, by implication or by prescription.
The Family Home Protection Act 1976 gives protection to a non owning spouse in relation to his or her family home. A ‘Family Home’ is defined as:
- ‘primarily, a dwelling in which a married couple ordinarily reside.’;
- A dwelling in which the non-owning spouse ordinarily resides;
- A dwelling in which the non-owning spouse had ordinarily resided prior to leaving the spouse;
- A garden or other land that is subsidiary or ancillary to the above;
- Any non permanent structure, vehicle or vessel, whether mobile or not, occupied as a separate dwelling and coming within categories 1-3.
Since the enactment of this legislation, the prior written consent of the non owning spouse is required before a family home may be sold otherwise the conveyance will be voidable, in other words the non owning spouse whose consent was not obtained may go to court to set aside the sale. He or she has only six years from the date of the sale to do this. A consent given after the sale has completed is not sufficient to cure the defect. In the case of Bank of Ireland v Smyth the court held that the spouse must know what it is he or she is consenting to. In that case a spouse signed a consent to a mortgage in the mistaken belief that it related to farmland only and not to the home. The Bank failed in it’s attempt to enforce the mortgage in that case.
Since the introduction of the Civil Partnership and Certain Rights of Cohabitants act 2010 the rights of spouses as described above have been extended to civil partners.
Co habitants do not have the same rights however they may apply to court in certain circumstances for property adjustment orders. Their prior consent to a sale is not required.
Title to land may be acquired by adverse possession for a period in excess of twelve years however certain conditions must be satisfied in order to establish a claim to ownership namely:
- Posession must be inconsistent with that of the true owner. This means that for example casual possession, or possession for the purpose of clearing waste, or possession with the consent of the owner will not suffice;
- There must be an intention to exclude the true owner and all others;
- The time must run for the required period;
- The person in possession must be capable of having time run in his favour.
Hedigan J in the case of McCoy v McGill & Roe set out the legal principles relating to boundary disputes:
- The primary source for defining a boundary line is in the title deeds;
- The plan is only for identification purposes and cannot be relied on as being accurate;
- The topographical features (for example ditches or rivers) existing when the deed was executed may be relied upon.
Badly drafted Deeds
Sometimes it is claimed that a Deed does not accurately reflect the intention of the parties. Other times the Deed uses language that may cause confusion or give rise to more than one interpretation. As a general rule, in the event of a dispute, the court will try to give effect to the intention of the parties as expressed in the Deed. The court will interpret what is meant by the words actually used rather than trying to speculate what might have been the intention. If available the contract upon which the Deed was based will be examined.
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