Workshop: Listening to client plans when investigating title to land

Since I have been writing these articles ?I have, on many occasions, highlighted the importance of checking title and search results. A recent case I was involved with involved a public footpath running within a property being purchased by my client. More importantly, this case involved a client making an off hand comment regarding his intentions for the property.

My client, we will call him A, had agreed to purchase a property from B. The property included with it a substantial area of undeveloped land. My client had the idea that he may like to develop this land for residential property and make a tidy profit.

So, with those instructions in mind I started the process of investigating title and requesting the usual property searches. I am pleased to say that the title to the property did not contain anything too scary, although there were provisions for the reservation of mines and minerals; but that is a story for another time.

Eventually, I received back the results of the property searches. The environmental search was clear, the chancel check was clear and even the water and drainage search showed no adverse entries. However, the Local Authority search did show that there was a public footpath running from the main highway along the side of the property and through a field to the rear ?of the purchase land. The plan was old ?and unclear so further investigations ?were made.

As it turns out, the footpath did in fact run inside the boundaries of the land my client was purchasing. The seller's solicitor was unable to ascertain whether the footpath, although public, was maintained at public expense or not. I decided to report this to my client immediately and, it was a good job that I did because he was just about to incur significant costs in relation to a planning application for the development of a residential property, the plans to which showed the construction blocking ?the footpath.

I had to explain to A that he would not be able to build the property as he had planned due to the presence of the footpath which must remain clear. I also had to explain that at that time it was unclear who was responsible for its maintenance and therefore, unless we could find that information out, A would have to assume that he may be liable for repair and, as ?a consequence, this liability would be passed on to any future owner of the new build property he was planning. This is certainly something that may put off any potential purchaser.

Needless to say, A was glad I caught him before he went to significant expense with regards to planning. A was able to revisit his plans and take account of the footpath '“ he was still keen to proceed with the transaction. We were also, after further investigation, able to establish that the footpath was maintained at public expense. We eventually completed the transaction and my client is now underway with the construction of another dwelling on the land for sale.

For me, this is a clear example of why we conveyancers are needed. On the ground, A informed me that the footpath was not obvious but once he know it was there, he could tell that it had been used as such (although, he guessed, not for a very long time). It is essential not only that we carry out a thorough investigation into title matters but also property searches. With every conveyancing matter you deal with you should keep in mind at all times your client's instructions but also any comments that may be made about their intentions for the property. In this case there was a big warning light in my head that went off as soon as the client started talking about development; but sometimes it can be an innocent comment about a possible kitchen extension, for example.
You may find yourself the subject of a possible claim when the client comes to you and says 'but I told you I was going to extend the property and you never mentioned the public sewer/right of way/restrictive covenant'.