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Urgent Help With Folio Issue

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  • 20-05-2015 8:49pm
    #1
    Orchid
    Registered Users Posts: 103 ✭✭


    Hi guys,

    I was wondering if you can help us. We have been trying to buy a house for two years and I thought we were nearly there but it seems like all is going to hell again.

    So we had sale agreed on this house, we had the final mortgage offer, engineer's report, bank assessor's report, mortgage protection insurance, etc. We were given the final contract to sign when my husband noticed that the folio map of the property only included part of the garden. We queried it with our solicitor who wrote to the vendor's solicitor about it. The vendor's solicitor told him they can provide letters from the current owner and the previous owner prior to 2006 that there have never been issues with the neighbours. The land in question is in the name of the building company which no longer exists. There is no building or anything on this land, it just makes the garden bigger. Unfortunately this was not picked up by the bank, the engineer or our solicitor before we pointed it out.

    Our solicitor now says he has to write to the bank and let them know that the property has a bad title or something like that. He expects the bank won't provide the mortgage because if this.

    We are so sick of house hunting that we are perfectly happy with a smaller garden, we really don't care about that small piece of garden. Does anyone know if there is anything we can do?
    Why is it impossible to simply go ahead and buy the title with the land as it is on the map, we can just fence off the land in the other folio. Am I clutching at straws here? .... I dread the talk with the bank when they get the letter.


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    #2
    Marcusm
    Registered Users Posts: 10,341 ✭✭✭✭Marcusm


    The only question I will pose is how could the bank or solicitor know that the property was not correctly mapped - which I suspect is the problem here. What county is it in and what does the original conveyance from the builder say? Much of the current mapping is derived from satellite imagery. I had a case in 2008 where the mapping took the line of a flower bed rather than the more obvious boundary which was confirmed from the conveyance and plot layouts.


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    #3
    Orchid
    Registered Users Posts: 103 ✭✭Orchid


    Marcusm wrote: »
    The only question I will pose is how could the bank or solicitor know that the property was not correctly mapped - which I suspect is the problem here. What county is it in and what does the original conveyance from the builder say? Much of the current mapping is derived from satellite imagery. I had a case in 2008 where the mapping took the line of a flower bed rather than the more obvious boundary which was confirmed from the conveyance and plot layouts.

    Thank you for the quick response Marcusm. The property is in Cork. The difference is obvious as it is a big chunk, it's not out by a meter or two. On the map there is a road between us and the neighbour but that was never done and the land became a garden. There is a fence between "our" house and the neighbour's house so that space where there should have been a road was absorbed into the two gardens. We are thinking maybe the builder changed their plans mid building but never updated the maps, I don't know for sure.


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    #4
    Orchid
    Registered Users Posts: 103 ✭✭Orchid


    Marcusm wrote: »
    The only question I will pose is how could the bank or solicitor know that the property was not correctly mapped - which I suspect is the problem here. What county is it in and what does the original conveyance from the builder say? Much of the current mapping is derived from satellite imagery. I had a case in 2008 where the mapping took the line of a flower bed rather than the more obvious boundary which was confirmed from the conveyance and plot layouts.


    Hi again Marcusm, I'm not sure what the original conveyance from the builder means. Can you explain? I'm sorry, I'm very bad at this. I really appreciate your help.


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    #5
    Marcusm
    Registered Users Posts: 10,341 ✭✭✭✭Marcusm


    Orchid wrote: »
    Hi again Marcusm, I'm not sure what the original conveyance from the builder means. Can you explain? I'm sorry, I'm very bad at this. I really appreciate your help.

    Builder owns a big parcel of land which he may have bought in a number of different lots. He applies for planning permission to build houses, common areas such as roads, paths etc. he eventually builds it and sells it off. The first buyer get a parcel of land (first conveyance) and a map which might very well be based on the planning permission rated than what he's actually built. However, there's also a description of the land - which I believe is the crucial part - such as a plot 100 ft wide by 200 ft deep commencing at the midpoint of road x. Your solicitor should have this and should be able to direct a surveyor to compare it to the reality. If you and the neighbour have larger gardens because an access road between you wasn't built MAY mean that it wasn't conveyed to the first purchaser. On some folios, I have seen the common parts split up between neighbours.

    The devil is in the detail, the solicitor will need to assert "good marketable title" to the bank. If half the garden is owned by someone else, even if they are not around to claim it or use it, it means it's non standard.


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    #6
    MarkAnthony
    Closed Accounts Posts: 6,934 ✭✭✭MarkAnthony


    It's not fatal to the purchase but will probably involve revaluing the property. What they're suggesting with letters etc. is giving you a statutory declaration that the ground has been used exclusively by the owners for the last x years.

    Once 12 years has elapsed, theoretically the 'previous owner' is statute barred from claiming the land and you can register it. It can be vastly more complex of course.

    Best of luck.


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    #7
    Orchid
    Registered Users Posts: 103 ✭✭Orchid


    Hi guys, and thanks to the input which is hugely appreciated. We talked to the solicitor today again but it is like hitting a stone wall. Nothing can be done, it can't be reassessed or fenced off as a separate unit to match the maps as too many years have passed, it is a bad title or whatever, he will write to the bank to let them know and we will likely be refused mortgage. What annoys me is neither he or the engineer picked it up in the first place to now treat us like simpletons when we are just trying to query all options that may be out there ..... Do you think it's worth looking for a second opinion or just accept it is not going to work out for us again?


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    #8
    MarkAnthony
    Closed Accounts Posts: 6,934 ✭✭✭MarkAnthony


    Why do you think it's not going to work out? All the bank care about is do they have enough security over the property.

    If the property is worth 250K with a 1 Acre site and 200K with what you have, as along as the LTV stays within the limits the bank won't/shouldn't care. For example if you're taking a 100K mortgage you got to a 50% LTV is all.

    Furthermore there's no reason the solicitor can't issue the title with a qualification regarding the extra bit.


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    #9
    Kelly06
    Closed Accounts Posts: 509 ✭✭✭Kelly06


    If the land is still registered in the name of the building company and the building company is now dissolved ( check www.cro.ie )this means that the land is in the ownership of Minister for Public Expenditure and Reform under s28 of state properties act.

    It is open to the owner of this property to apply for a waiver to the minister over the lands under s31 of the act. A claim for adverse possession would have a 30 year time limit if this was the case rather than the usual 12 years.

    This would be a possible way to resolve this issue if you bought the house rather than help you in the process of purchasing it.


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    #10
    Orchid
    Registered Users Posts: 103 ✭✭Orchid


    Thank you very much for the input. It is definitely much more reassurance than we have received offline so far. It will become apparent what will happen with the bank, etc. in the next couple of weeks anyway and I will let you know how it went.


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    #11
    Orchid
    Registered Users Posts: 103 ✭✭Orchid


    I forgot to ask one last thing that seems obvious to me but seems for some reason impossible to be done. Can anyone who understands these issues explain why is it impossible?

    Why is it not possible for us to request from the current owners just to move the fence to match the folio map? Why can't this be done when it will solve everything?


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    #12
    MarkAnthony
    Closed Accounts Posts: 6,934 ✭✭✭MarkAnthony


    Orchid wrote: »
    I forgot to ask one last thing that seems obvious to me but seems for some reason impossible to be done. Can anyone who understands these issues explain why is it impossible?

    Why is it not possible for us to request from the current owners just to move the fence to match the folio map? Why can't this be done when it will solve everything?

    They need to know how it actually is - but essentially with a revalue on the basis of the smaller plot that exactly what you're doing. How it the works out once you're in is a different story. You may very well decide to pop a fence up or leave it as it is.


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    #13
    Orchid
    Registered Users Posts: 103 ✭✭Orchid


    MarkAnthony wrote: »
    They need to know how it actually is - but essentially with a revalue on the basis of the smaller plot that exactly what you're doing. How it the works out once you're in is a different story. You may very well decide to pop a fence up or leave it as it is.

    Hi MarkAnthony, we tried to query this with the solicitor as it seems the obvious thing to do. However it is like hitting a wall. He said he has never seen a bank go ahead with the mortgage in such situation. And I think we are in a good position as we are funding nearly 50% with our own savings.

    Anyway we will know soon. I am still hopeful he is wrong or that someone who has been in a similar boat will post here to let us know how it ended with them.


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    #14
    MarkAnthony
    Closed Accounts Posts: 6,934 ✭✭✭MarkAnthony


    Orchid wrote: »
    Hi MarkAnthony, we tried to query this with the solicitor as it seems the obvious thing to do. However it is like hitting a wall. He said he has never seen a bank go ahead with the mortgage in such situation. And I think we are in a good position as we are funding nearly 50% with our own savings.

    Anyway we will know soon. I am still hopeful he is wrong or that someone who has been in a similar boat will post here to let us know how it ended with them.

    Be guided by your solicitor of course, but I had an issue with land not being transfered when I was buying recently. KBC had the property revalued taking into account the loss of the side entrance and part of the side garden, got qualified title from the solicitor and ran with it.


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