Access all areas?

No one can tell for certain how many of the 24,000 or so (give or take one or two) properties in Guernsey have some sort of boundary or access problem. However, in our personal experience, roughly one in five are deemed to have 'defective' title to a greater or lesser degree

In many cases, despite having only been conveyed in the last five years, current 'best practice' and the demands of lenders leads the conveyancers to attempt to gain 'perfect' conveyance which can throw up omissions in the deeds.

In very simple terms, these omissions can include:

• Right of way: You do not have the express right to cross another property to access yours.

• Access: You do not have permission to enter another property in order to carry out specific activities in relation to your property, i.e. check, paint, or maintain a boundary wall, check service or clean/clear drains.

• Servitudes: You do not have the right to do something to or use another property for something, i.e. you may not have the right to have a gutter overhanging next door’s land or affixed to a neighbour’s wall. You may have a drainpipe or other service leading to or from your property through, over or under another’s property without the express permission being recorded as a right within your deeds.

In all of the above 'basic' scenarios, to put it simply – you have a problem.

In real day-to-day existence, this problem may not exist. Islanders are normally a pragmatic, relaxed, genial and easygoing bunch. Consequently a reasonable request normally elicits a reasonable response, i.e. scaffolding, wheelbarrow or ladder access is normally met with a favourable and informal response in the spirit of good neighbourly behaviour, even if the option to pick up a paintbrush and help isn't taken up.

So where does this fall down and why do problems with title cause so many difficulties for so many families?

While I'm sure many people would applaud me if I did, it would be unfair to lay the blame solely at the feet of the legal profession. In the vast majority of cases, clients will have been given the correct advice at the time and often will have taken view. The fact that circumstances have changed will not make the advocate liable. Though if playing devil's advocate, I'm sure the fee for drafting each boundary agreement that needs to be drawn up is not exactly unwelcome.

Please don't take this as patronising, but for the uninitiated, the real problem lies with mortgage lenders, many of which have off-island decision makers who may be a little less familiar with Guernsey and its conveyancing system, and perhaps is based on the advice that they receive from their own legal counsel in the island.

When a bank takes a decision to lend you money and puts its faith in your ability to repay, it obviously wants some guarantees. Therefore it places a 'bond' on the property that entitles it to re-possess if you fail to repay it under the agreed terms. While very few properties are re-possessed, obviously there is always the possibility that any person will default, hence the need for life cover also.

Banks are not in the business of holding property as an investment and therefore any repossessed properties are sold to cover the debt owed. Therein lays the problem, as they need to ensure that this can be done quickly and easily.

If there is a boundary issues, sale may be delayed, involve additional cost or even be impossible, particularly if the new purchase also requires a mortgage and the new bank will want the same 'clean' and 'perfect' title. Somewhat a self-perpetuating problem.

Not wanting to make a social commentary, I'm cautious about saying that we live in increasingly officious and litigious times, but there has definitely been a marked increase in these types of problems recently and the outlook seems fairly bleak, when long-standing friends and neighbours suddenly see dollar signs and friendship goes out of the window in search of a quick buck. Clearly some sort of government intervention is required, particularly if the real intention of recently suspending the DPT (Dwelling Profits Tax) law was to stimulate the market, generate increased property transactions and the associated document duty collected, which I'm sure has been earmarked for some worthy project or other.

Of course, not every purchaser requires a mortgage and on many occasions a true 'cash-buyer' may take a view on an access problem, perhaps gaining a bargain in the process, or even take the view that the problem can be rectified at a later date or their heirs can sort it out.

Such investors may also be pinning their hopes on the long-awaited intervention of the States and the introduction of a blanket law. However this can be a risky decision, though the rewards may justify it.

So, what we can conclude is that:

• Boundary and access problems can and do affect hundreds of transactions per year and can seriously impact upon a person’s ability to sell or purchase a property, often causing significant emotional and financial distress.

• Even with the best advice, a person who purchased a property under the understanding that they had good and clear title may find under ‘best practice’ that they are faced with an unexpected legal bill to draw up new agreements or at worst held over a barrel by uncooperative neighbours who may demand exorbitant sums or refuse to grant rights at all. Even if your property was conveyed to you as recently as three or four years ago, you may have defective title. In this circumstance, you may have a claim against the advocates who acted for you in your purchase, so a second opinion may be wise. But beware, if you were advised of the risk or defective title, your advocate will have a file note.

• The States of Guernsey and we as taxpayers may be losing significant amounts through lost document duty.

• Urgent action is required to introduce legislation guaranteeing minimum statutory access rights to at least maintain the boundaries of every property in Guernsey, with appropriate notice given. This represents a significant opportunity for a States member or members to remove an obstacle to ordinary everyday islanders, presumably at the low cost of drafting the legislation with the existing law-officers.

In the meantime, our recommendation to any person considering selling their property is to not take our word for it. Speak to your estate agent, who should have knowledge in this area and/or your advocate and get your title deeds checked before you go on the market.

If you find that you have a boundary or access problem on a recently conveyed property, speak to the conveyancing department at the advocate that you used and get their views. If in doubt, take independent advice. If you were incorrectly advised, both you and your lender may have redress for either resolution or remedy.

Lastly, of course the above has been sanitised for publication and is written without any intention of provocation or influence. I personally would like to see a pragmatic and reasonable approach taken in all property transactions, but in modern times, unfortunately, a more prescriptive approach from government may be unavoidable.

'Our recommendation to any person considering selling their property is to not take our word for it. Speak to your estate agent, who should have knowledge in this area and/or your advocate and get your title deeds checked before you go on the market'

If you would like further information or elaboration or to discuss any aspect of property, please give me or my colleague John Le Tissier a call.