PROPERTY / Doubtful deeds: Jonathan Sale warns buyers to read the small print
Sunday 09 August 1992
Large issues can lurk in the small print, and they are best sorted out before you buy. Ensure that what is on the documents matches what is on the ground. Are the boundary lines on paper the same as the fence in the garden? Is it indeed the right house? Richard Barr, a King's Lynn solicitor and author of the Consumers' Association guide, Do Your Own Conveyancing, recalls the family who bought a former railway cottage. When they came to move in, they discovered they did not own the property they had been shown round, but another a few doors away. They did not complain: the second one was better.
'These sort of problems do crop up depressingly frequently,' Mr Barr said. 'You have to look at a house as if it is a castle, making sure it is secure on all sides, with a proper drawbridge.'
For Aleksander and Julia Jedrosz, two teachers living in South-east London, a feudal curiosity turned out to be only too alive. Ever since the local lordship of the manor was bought by a 17th-century actor and bearbaiter, a wide area round what is now the South Circular has been owned and administered by an estate known as Alleyn's College of God's Gift at Dulwich. Even if they are freeholders, most of the Dulwich residents are subject to a 'Scheme of Management'. They pay a small annual charge and have to obey a set of regulations.
'You laugh about it,' said Aleksander Jedrosz ruefully. 'Look, you say, you're not allowed to hang out the washing on a Sunday or run a brothel]' But he and Julia stopped laughing when they needed to build an extension for Andrzej, their severely disabled son. Although Southwark Council gave planning permission and a grant towards the costs, the essential 'licence' from the governors of Dulwich Estate was not forthcoming. Only after a vigorous local campaign did the governors vote narrowly to give the go-ahead.
It is not just feudal-style land which can contain a legal trap. While buying a field for a client, Sheila Fox, a licensed conveyancer, spotted a right of way going through a housing estate. It hadn't been diverted: 50 gardens and front rooms were at the mercy of ramblers' boots.
There is no excuse for missing a right of way or a proposed motorway through the back garden of your prospective purchase. A local authority search provides details of these and other booby-traps. But that is not always enough. A competent lawyer will know when to carry out further searches, in, for example, the Registers of Common Land and Town or Village Greens. A search there, which would reveal whether the public has a traditional right to pasture animals in your back garden, could be crucial in a manorial sort of village. In that sort of terrain it might also be worth making a different search, this time for 'chancel fees', in the Records of Ascertainment at the Public Records Office in Hayes, Middlesex.
'Chancel fees are a liability on the property,' explained Henry Stuart of Withers, a large firm of central London solicitors. 'The vicar can actually look to the owners of a certain piece of land for the cost of maintaining the chancel, the bit with the altar.'
It is a rare diocese that insists on its right to chancel fees. But the Church of England - and indeed anyone else - is entitled to make use of another power. If you are selling off part of your land - a country estate or suburban garden - you can place a 'restrictive covenant' upon it. In the past, covenants often vetoed the making of bricks, opening a tannery, keeping pigs or boiling blood. The usual way for a buyer to lift this curse, as it were, is by applying to the current owner of the dominant land.
Most of us can live with restrictions on brickmaking. Alarm bells, though, should ring when it comes to building: would you be prevented from adding an extension - or even a shed? Worse, did a previous owner put one up anyway? In that case, the owner of the land which controls the covenant could turn up out of the blue to sue you for that breach of the agreement.
This is Kafka country: sometimes the deeds state that a covenant has been laid on a property - but not what it is and which of the neighbours can lift it. If in doubt, make sure that whoever is doing your conveyancing searches in the Central Land Charges Register in Plymouth (for so-called 'unregistered' property) or in the nearest District Land Registry (for 'registered' property).
With a bit of luck, the small print will have passed its sue-by date. One of Richard Barr's clients bought an old railway station and is bound by a proviso that the local squire can, 'for the convenience of himself and family and friends but not servants', bring any train screeching to a halt there. Fortunately, the station's owners don't have to operate the signal-boxes. The line was axed ages ago.
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