Title Problems in Rathfarnham
OWNER DISCOVERS DUBLIN WATER SUPPLY RUNS UNDER HIS HOUSE
I looked at the estate agent’s pictures of the house built on an acre site in Rathfarnham. The house was recessed into the hillside, split level, large, well furnished and approximately 418 m2 (4500 sq. ft). It came with outhouses, stables and a training area for horses. It was surrounded by large mature trees.
Joe and Mary requested me to act when Mary wanted to sell the house. They were nearing retirement and a smaller house closer to the city better suited their needs. I was instructed to act on their behalf. There was no mortgage on the house.
ORIGINAL TITLE TO THE PROPERTY
The title or ownership to the property consisted of two rectangular folios which appeared to about one another. The house was built fully compliant with planning permission issued in 1984. The house sat astride the two folios as per the following diagram.
UPDATED TITLE TO THE PROPERTY
I prepared Contracts, replied to the questionnaire called Objections and Requisitions on Title. The property was fully marketed and went sale agreed after 8 weeks. Joe and Mary were very happy. They had agreed to buy a smaller house in Terenure. I ordered up new folios from the land registry. The new folios duly arrived. The Ordnance Survey had updated the scale on the maps attached to the Folios from 1:1,000 to 1:2500. The site now showed two rectangular folios owned by Joe and Mary but with a 3-metre distance between the two folios that was not owned by them. Their house sat squarely on two folios with a 3 metre gap in between. The diagram below shows the situation better.
WATER SUPPLY PIPE TO DUBLIN CITY
The ownership of the 3 metre gap between the property was registered on the older system of the registration called the Registry of Deeds. I carried out searches and found out that Dublin County Council (now South Dublin County Council) was the owner of this piece of ground.
I wrote to the legal department of South Dublin County Council. I said that the house sat partly on 3 metre gap and we requested that it be transferred into my clients’ names. The Council said that they would need to run a check to find out why the Council owned this 3 metre strip of land.
After a couple of weeks the Council wrote to say that they would not sell the land to my clients. They said that the 3 metre strip was a reservation for a pipe which fed water from the mountain reservoir in Wicklow into the Dublin water system. Joe and Mary were shocked. They had never been told about this when buying the property. They were now under time pressure if they wanted to buy their new house in Terenure. South Dublin County Council said that in due course they would send an engineer to carry out a trial bore hole to see where the actual pipe was. Seemingly it was common for the pipe not to be within the 3 metre reservation.
NEIGHBOURS AND THE PIPE
At this stage I asked Joe and Mary to talk to neighbours who had lived in the area for a long time. This they duly did. They were amazed to find out that there was a pipe underneath their property. However the question was – where exactly was the pipe? Was it under the house or elsewhere underneath the property or elsewhere? The neighbour said if they went over to the extreme left of their property beside where the large chestnut tree is, there should be a hole and if you listen carefully you can hear the sound of running water. Joe duly did this and sure enough he could hear the water. It was amazing to think that the clients had lived on the property for 15 years and not known that this pipe existed. The property had been sold several times before and the fact of pipe and reservation of land had not been mentioned. It only became visually apparent when the Ordnance Survey had increased the scale of their maps from 1:1000 to 1:2500.
NEW WAYLEAVE FOR THE WATER PIPE.
Contracts had been issued to the Solicitors for the purchasers of the property. When the new maps became available and knowledge of the reservation and the pipe became apparent, they were disclosed to the purchaser’s Solicitors. The question was would the buyers accept the new facts or walk away. Joe and Mary were lucky in that the purchasers really wanted the property, even with the pipe problem. However, the buyers insisted on owning the land beneath the house but accepted that South Dublin County Council needed a wayleave for the pipe actually in the ground in order to maintain and repair it.
PROBLEM SORTED
Both my clients and the purchasers wanted the matter sorted out with the local authority quickly. The local authority had their own procedures and it took time for them to organise an onsite inspection to find out where the pipe was. It was then necessary to re map the location of the pipe and prepare and sign a deed exchanging the land underneath the house in return for letting the Council have the right (an easement) to continue to have the pipe under the property together with access rights to maintain and repair it.
Eventually the sale went through. Joe and Mary lost their house in Terenure as the seller would not wait. Joe and Mary were very relieved to have their house sold. They rented and then bought a different house in Rathgar. All’s well that ends well.
The above story is true. However, the names of the people involved and the locations have been changed to protect their privacy.