Thu 26 Oct 2017 by Tony Lilleystone
“Why do I need a solicitor when I'm buying a home? I wouldn't need one if I was buying a car.”
This is a common complaint, and in fact there is a simple reply - “You don't!” Of course solicitors can tell you many good reasons why you do need their conveyancing services when buying property, but it's not actually compulsory to use one.
The report of a recent law case shows up just one reason why buying a home can be a good deal more complicated than buying a car – and why it can be a good idea to get have a solicitor.
When you buy a car you take it as a given that when the seller hands over the keys you can get into the car and drive it away. You would be extremely surprised if a total stranger said they had a legal right to stop you getting into the car or claim they had a right to use your car every Sunday afternoon – in fact it's so unlikely that it's laughable.
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But something like this can happen when you buy a home. Many homes require access rights over neighbouring land or are subject to such rights. You cannot assume that you can have unrestricted access to a property. If a home abuts a public highway then usually there is no problem – but not all roads are public highways.
Where a property does not directly abut a public road then the owner will require a right of way over someone else's land. It is not enough to assume that because there is a path or road that a legal right of way exists over it. And if your property does not have legal access rights then you will have a problem getting to it. Suppose there is such a right but it's only for use as a footpath. That might not be a problem if the access is clearly over a narrow passageway between buildings.
If there's only a right to use a path on foot you do not have any right to drive cars or other vehicles over it. (That was the crucial point in the case mentioned earlier – homeowners were prevented from driving over a path because they only had a right of way on foot.) Your new home could be subject to a right of way. This means that you may not have the permission to drive up to your own house!
Many properties are subject to rights of way – they might be public rights such as a public footpath or bridleway, or private rights such as the right for a neighbour to gain access to their back garden. Having a right of way crossing your land can be a nuisance, especially when the first you know about it is seeing the neighbours walking past your window in order to put their dustbin out.
And you can't just block a path or road to prevent people using it. Landowners trying this often find themselves on the wrong end of expensive litigation. Diverting the path may be possible but usually requires consent. Rights of Way is just one area of property law that solicitors investigate Of course there are many more legal problems to buying a house than rights of way. But they are crucial to your use and enjoyment of your new home.
So if you think you don't need a conveyancing solicitor when buying a property ask yourself how much you know about property law. When you have a solicitor acting for you on the purchase of your home, the existence of rights of way is just one of the areas of property law they will be investigating for you.
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