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Remus2004, Barrister
Category: Property Law
Satisfied Customers: 69268
Experience:  Over 5 years in practice.
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Hi there We recently bought a rural property which completed

Resolved Question:

Hi there

We recently bought a rural property which completed on 11th October 2013.

Since we moved in, we have been made aware by our next door neighbour that a Public Footpath crosses directly through our property and onto theirs. This line of this footpath passes across our drive from one side of to the other, before crossing over the boundary wall and carrying on through the neighbour's garden. It is approximately 15 feet away from both our kitchen and lounge window, divides our drive and passes directly outside our garage, where we keep our dogs. This is obviously a serious concern for us as we were not aware of it when we purchased the house and it will have direct consequences on us for any future sale, on both house value and ability to sell. It also means that we are not able to leave our dogs unattended outside in case anyone uses the path. We are also obliged to take our Public Liability Insurance for any accidents which may occur on this section of our property.

On looking back through the Seller's Property Information Form (TA6), specifically sections 8.4 and 8.5, there is no mention of the Public Footpath. We were not made aware of it by the seller or the estate agent (who may or may not have known). Furthermore, in discussions with our neighbour, it transpires that our seller was fully aware of this footpath as they both shared the cost of erecting the boundary wall between the properties and included stepping stones on both sides of the wall to enable members of the public to cross from one side of the footpath to the other. A meeting with the Countryside Access Team from Pendle Borough Council on Friday, 28th February confirmed that this footpath is indeed on their definitive map which shows all Public Footpaths in the Borough.

If we had been aware of the Public Footpath when we purchased the house, we would have seriously considered whether we would have progressed with the sale. We feel that we have been misled by the seller who completely omitted to declare this information, which we feel is fundamental to the value and saleability of the property, not to mention our lifestyle.

Could you please advise on where we stand legally with this and what our next steps are with regards XXXXX XXXXX seller and/or solicitor.

Kind regards
Submitted: 2 years ago.
Category: Property Law
Expert:  Remus2004 replied 2 years ago.
Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Have you taken this up with the seller or your own solicitor please?
Customer: replied 2 years ago.
We contacted our solicitor 2 weeks ago and she said it would take a couple of days to retrieve the files from archive. My husband has chased her up today as she has failed to respond to a follow up email. She has advised that the file has been passed to her manager for a review. We have not contacted the seller as we do not have contact details for them.
Expert:  Remus2004 replied 2 years ago.

The file will usually have been passed to someone else to review if they think that there is a potential claim against their firm in negligence.

Notwithstanding that, this is your file and you are entitled to it. Not a copy, the original.

Also, they are not entitled to charge you for copying if they want to keep a copy for their own purposes.

Once you have the file, you will have a better idea of the enquiries made by the solicitor although from what you have told me, it appears that this is not the solicitor's fault if the solicitor and you have relied on the replies to enquiries in the TA6 SPIF.

It is highly likely that the agent would not know about this but it is most unlikely that the seller would not know about but they may have forgotten about it if it is rarely or never used and therefore, whilst it is misrepresentation, it is likely to be innocent misrepresentation.

So, what can you do? It is highly unlikely that the court would order you to get your money back and the seller to take the property back (precision of contract) and therefore the court would award you damages. The amount of the damages would be based upon the valuation of the property without the public footpath and the valuation of the property with the public footpath.

However you are going to be faced with suing the seller and if they do not use the same solicitors, you are going to have to do use a tracing agent to find out where they live so that you can serve papers on them.

Can I clarify anything for you?

Remus2004, Barrister
Category: Property Law
Satisfied Customers: 69268
Experience: Over 5 years in practice.
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