Making a right of way claim against a solicitor
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In order to make a a right of way claim against a solicitor you must be able to establish that the lawyer was at fault and in breach of their duty of care. However, establishing fault in these cases is not always straightforward, as this real life case study demonstrates.
About five years ago, our client (who we shall call David) purchased a new build house in a development on a small close. There were only five houses on this plot which had originally been used for a small Council office that had been demolished. To get all five houses onto the plot, the developer had built them along one side of the site with a road through the middle. The other side of the road was derelict but, it was believed, still within the plot owned by the developers. To get to David’s house and indeed, the other four houses, you had to drive or walk down the new road.
Everything was fine for a couple of years until out of the blue, David and the other house owners got a letter from the local Council saying that, contrary to what was believed, the derelict land and the land that the new road had been built on, belonged to the Council, not the developer. David was trespassing on their land each time he used the road!
David and the house owners instructed a local solicitor to try and sort out the problem with the Council and the developer. The developer did make a number of proposals including purchasing the land from the Council but for some unknown reason, the Council would not play ball. In fact, it went so far as to block the road so it could not be driven on. David had to park on the street and walk along the edge of his neighbour’s gardens to get to his house.
We were asked very late in the day to advise whether David had a professional negligence claim against his conveyancing solicitors for not noticing this problem. Without access, his property was virtually worthless and whilst the discussions with the Council rumbled on, he wanted to know if he could get recompense from the original solicitors.
To bring a claim for professional negligence, you have to show that a reasonably competent solicitor would not have made the same mistake that the negligent professional did. We therefore had to look at the papers in that light.
The solicitor had obtained all the relevant paperwork from the developer. He had obtained a copy of the deeds which showed a plan of the plot that the developer had bought; he had also obtained a plan from the developer, identifying the five houses and the plot that would be David’s. The first plan showed the entirety of the plot which abutted against the adjacent houses. The second plan clearly showed five houses, a road in the middle and then a large, blank unbuilt area before the plot ended next to the adjacent houses. It didn’t make sense: the plans looked identical.
However, because we were alert to the fact that there was a problem we looked very, very carefully at the plans and realised why an error had occurred.
The plan that the developer sent had been prepared by an architect. He had showed the adjacent houses and had numbered two of them so we could work out that the last house at the edge of the plot was numbered 22. Looking at the original plan on the sale of the Council’s office, after a bit of counting, the adjacent house was numbered 26. Somewhere along the line, it looked like the Council had purchased houses 24 & 26 and demolished them, leaving derelict land which the developers had presumed they owned.
Because we were alert to the problem we could see where the error had occurred but looking at it with the eye of the original conveyancer and comparing the two plans, it simply could not be spotted and the conveyancer could not therefore be considered negligent. To add insult to injury, the conveyancer had been very good to ensure that David had a right of way over the road!
So in this instance, there is no negligence claim against the solicitor; all David can do is bring proceedings against the developer for breach of contract in failing to give him good title.