I read a recent article in the Property Clinic regarding buying land with no access. A similar situation has arisen with a small development of 12 houses built around a small green area and access road. The developer sold off the individual plots but retained ownership of the shared land over which the access road connects the houses with the public road. It has not upgraded the road or maintained the area since construction was completed a number of years ago.
The road access has not been registered as a right of way, although all the houseowners have used it as such since the houses were built, some as long ago as 15 years.
There is no management company in existence, and the developer has just moved ownership of this common area of land into a limited company and there were rumours that it might be sold on to a vulture fund.
Access, all the services, and the common green areas are contained in a parcel of land over which the surrounding homeowners have no control or interest.
Have you any advice on what the homeowners should do to protect their interests and what position will they be in if they do not do anything?
We would advise as a starting point to check the title deeds, a solicitor can assist in this regard. The deed of transfer should contain the necessary easements, which the owner needs to reach the public road from the house, and also those required so that the drains to the house can reach the public sewers. If such rights are included in the deeds, then the owner of the road owns it subject to those rights and easements in your favour and, if the builder has transferred ownership, the new owner takes it subject to same.
If the right of way and easements are not included in the deed this is not fatal. Rights of way can come into existence without any contract or agreement and may arise from the continuous and uninterrupted use of a right of way/easements over another’s lands for a minimum period of 20 years or 15 years from the December 1st, 2021.
In circumstances where all the houseowners have used the access road since the houses were built some as long ago as 15 years, it would appear that the houseowners have acquired rights which are capable of registration in the Land Registry.
An article entitled "Can I quietly register our right of way access without upsetting my neighbour?" published on March 6th last details how to register same.
In addition to the above, we would advise that you contact the local authority to confirm if the road and common areas are in charge. The term “taking in charge” means that the local authority assumes responsibility for certain services located within the common areas and public areas associated with a particular estate.
You should check the planning permission granted for the development which is likely to include conditions relating to the management of the road and services. In most building estates an indemnity bond is payable to the local authority by the builder in order that the roads, services, sewers and all other services will be taken in charge by the local authority at a later date. The local authority will confirm if such a bond exists and if there are any plans to take the estate in charge.
Local councillor
It may be useful to contact your local councillor as he/she may be familiar with the estate and assist you in resolving the issue. A majority of homeowners may make a written request to the local authority to have the estate taken in charge. The application may be made using the appropriate taking in charge application form.
The form must be accompanied with the signatures of the majority of the residents within the estate. If you do nothing, then it may affect the saleability of your house as a bank may not be willing to lend money to a prospective purchaser where there is such a defect on title.
We would also advise that the houseowners come together, it is in the interests of all that the issue be resolved.
Siobhán Durkan, solicitor, P O'Connor & Son Solicitors, Swinford, Co Mayo, poconsol.ie
