Burdens on Land Register; Network Rail utilities

[skotl]

Hi all,
We're in the process of buying a house (in Scotland) and the Land Register has thrown up two worrying burdens, that I'd appreciate your thoughts and experience on.

The history is that the house and it's neighbour were built on land purchase by what was British Railways, in 1977. There is a rail yard, and an active railway station, behind the rear garden.

The Burdens include the following text (I've simplified some of the terms, substituting "(we)" for me, and "(them)" for Network Rail);

1)the said subjects are disponed under burden of servitudes and rights of wayleave for the laying and maintaining of any sewers, drains, pipes, cables, telegraph and telephone poles
2)(we) shall satisfy (ourselves) as to the existence of any (of that list) and relieve (them) of all claims and and liability of every kind in respect of any future interference with said sewers and others due to (my) operations in erecting buildings in said subjects
3) before carrying out or commencing the erection of any buildings, (we) shall submit to (them) for approval, plans, sections and detailed drawings showing water supply and drainage connections ... and shall give effect to any reasonable suggestion made by (them)

Our solicitor is strongly advising against us proceeding with the purchase, for a couple of reasons. Firstly, this suggests that Network Rail (NR) can come along at any time and demand ground access to maintain, replace or add utilities.
Second, if we want to extend (which we do) then NR have rights to change the design, plus there is a decent chance that we would build on top of the NR utilities, increasing the risk of major upheavel if NR want to fiddle with their utilities.

Has anyone had any experience of similar burdens, especially for British Rail / Network Rail? Is it likely that NR will agree to release the burdens from the land?
Any other advice?

The obvious advice is to walk away, but the house is in the area we particularly want to move to, and properties in that area simply do not come on the market.

Cheers
Scott

 

[big-all]

it seems to say it all
ask them before doing any building work
be careful not to damage the services
and give them access if and when required

have you thought about asking them how often access will be required
or indeed ask the present owners how often it has been required

 

[skotl]

Thanks, Big, sensible advice.

We're still feeling a little raw as this news came out of nowhere today. We're going to get a "Utility Mapping Search" done - I guess that, if that skirts the major bricky bits of the site, that's less of a worry.

Does anyone else have related experience? Anybody purchased under similar burdens?

 

[big-all]

as an ex railwayman off 25 years who originated from edinburgh which station is it but please dont say iff you think it could be a problem
have you tried network rail ??

http://www.networkrail.co.uk/aspx/1534.aspx

 

[skotl]

Ah - interesting! No problem at all, as we're desperately trying to figure out what to do.

It's Dalmeny, which should probably help you figure out the property.

We did check that site, and the page about ex NR property, but the rather bland "we can do whatever we want" didn't help to allay any fears

 

[skotl]

...actually... I suppose I should say that if anyone has any generic advice, please post here, but if you have specific knowledge of the site, then a PM may be more appropriate.

Thanks

 

[big-all]

is there any way to move services to maybe under the driveway or to the edge off the site

surely there is only a couple off sidings at dalmeny[junction] now??
http://www.railbrit.co.uk/location.php?loc=Dalmeny North Junction
my uncle used to live in kirkliston i was born and stayed in the timbers at sighthill till 1968 iste drambuie place still at queensferry as a 16 year old i as a van boy for waddies stationers had to deliver boxes off whisky labels to them and for a young lad passing through a room off around 50 women acting like builders was intimidating and now 41 years on i would love a fraction off the embaracement

as an aside my dad then a driver at haymarket during the bridges aniversary in 1990 i think it was was on union off south africa renamed osprey for the occasion on photografic duties shunting on and off the bridge between trains for 2 or 3 days
or thinking about it now it may have been part off the celebration

 

[Possel]

I used to work for said NR.

There is a team (based in York when I left in 2009) who look after "Buried Services", and everyone wanting to do work below ground has to check with them first to know it's safe before they start work. If you could get hold of them, you might get lucky.

 

[skotl]

Hi all,

apologies for the long post but I thought I'd give an update on this in case it impacts or helps anyone in the future.

It turns out that land burdens, and burdens of the sort imposed by British / Network Rail in particular, are a big deal.
It took us a while before we finally understood why they are a big deal, and why the situation today differs to the situation 5, 10 or 20 years ago.

what follows is my simplified, amateur understanding of the situation

The nature of the impact is due to the different approaches that lenders have today; five years ago, a three-legged cat could get a £500,000 mortgage on a garden shed. Today, no surprise, lending criteria is much more stringent. There are a set of standards called CML part 1 and 2, which effectively mean that the conveyancing solicitors have to guarantee to the lender that the property they will lend on presents an acceptable degree of risk.
The issue with onerous burdens (as we had with Network Rail) is that they effectively say that NR could turn up at any time and knock the house down to run a cable, pipe or whatever, across the land with zero compensation.
Are they likely to do that? No. However, as our solicitor said "the chances of them doing it are tiny but, if they did, the consequences are catastrophic".

So, the solicitors were unable to sign off the property as presenting an acceptable level of risk, hence we (and pretty much everyone else) would not be able to get a mortgage on it.

Undaunted, our first form of attack was to get NR to lift the burdens. No deal. That's because there is still an active station behind the property but if you are in a similar situation, it's worth a punt - you may have more success if the adjoining land is no longer part of the active rail network.

The next stage, which was successful (this is the happy ending!) , is that we have affidavits from the buyers, previous buyers and original buyers, as well as the neighbours and builders, to state that NR have not exercised their rights in more than 20 years.

This is to ensure that we can prove that "Long Negative Prescription" applies, which states that if a right has not been exercsied for a period of time, then that right is deemed to have been waived.
As an extra precaution, we also had the sellers take out indemnity insurance which protects us (and future buyers) for 20 years. The cost was £1 per £1,000 of purchase fee.

Having completed these steps, our lawyers were happy to sign off on the property being an acceptable risk and, fingers crossed, we move on 9th Jan.

This has been a complete stress and legal minefield for us and I hope this information helps other people if they are faced with the same issue.

Cheers
Scott

 

[big-all]

thank you very very much for taking the time and trouble to get back to us we really apreciate it and as you say it will help others

 

[TheHandyAndy]

Wow! What a story!

Well done for keeping the dream alive and taking the time to update everyone on the outcome.

I hope you're very happy in your new house.

 

[skotl]

Cheers Andy

Yup - it was a bit of a rollercoaster. The oddest thing was the clear discrepancy between our solicitor's view and the seller's solicitors. Took quite a while for it to sink in with the other folks that this was a big deal.
Still, hopefully all worked out for the best. We took a trip out to the local primary school this morning, so our six year old could see what his new school is going to be like. Everyone seems very welcoming, so we're counting the days!