Wed | Aug 23, 2017

Can the parish council do this?

Published:Sunday | December 6, 2015 | 12:00 AM
Craig Francis
This building across from the United States Embassy offices in Liguanea, St Andrew, was demolished in March by the Kingston and St Andrew Corporation after it was constructed without permission well over a decade ago.
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Good day readers. This week I will be responding to a question from another distraught reader.

Good day Mr Francis:

I write with a great deal of trepidation. I have a piece of land that I recently subdivided into three. The access that is provided for the two lots that are to the rear of mine is a right of way 7.50 metres wide.

The right of way passes to the right side of my house and touches the boundary fence.

My problem is that I am selling my property. The purchaser had a surveyors' report done, which said that a section of my building (two feet) is encroaching on the right of way.

This has caused a snag in the sale. My attorney wrote to the parish council to request that the right of way be reduced to 6.50 meters so that the building would no longer be encroaching on it.

The parish council gave us permission to reduce the right of way, but then made a request that has me worried and panicky. The council has asked that I demolish a section of my building that adjoins the right of way, as they are saying that it is too close to the road.

The section has two storeys and is about five feet of building. This will cost me an enormous amount of money, affect my sale, and affect the value of my property. The building had been there long before the subdivision was done, so I am puzzled as to why now.

Please, Mr Francis, what can I do? Can the parish council do this?

I am awaiting your response.

P.S.J.

Good day P.S.J.:

Thank you for reading "A Matter of Land" and thanks for your question.

So concerned was I with the situation I had to make contact with the letter writer to get some additional information to give the best and most correct advice.

Let me first say that I am sorry for the torrid time you are having in trying to dispose of your property.

The demolition order by the parish council is somewhat befuddling to me, as it has been confirmed that the house was built to a building plan approved by the very same parish council.

I also checked your title to see if you had breached a restrictive covenant, in particular, one that relates to your proximity to the boundary, and there are no restrictive covenants endorsed on the registered title for the property, hence the cause for the order. That means you could have not committed a breach.

The fact that the parish council has given you the approval to reduce the right of way to ensure that your building is no longer encroaching on it has fixed any problem that might have existed. I am not certain of the reason for asking you to demolish a part of your building.

 

Prescriptive easement

 

The right of way is not a reserved road nor is it a private road. It is, however, a prescriptive easement that gives the two lots to the rear of your property access.

The property over which the right of way runs still legally belongs to you, and the extent of your property is not to the extent of the right of way but to your original boundary.

With that said, you are not required to demolish your building for being too close to the road as this is not the case.

I suggest you have the land surveyor prepare a new Surveyor's Identification Report, which will show that you no longer have an encroachment or any breaches. This will allow the purchaser to proceed.

You should also have your lawyer write to the parish council outlining the points I have made and state your unwillingness to demolish the building. Also, have the lawyer attach the new Surveyors' Report.

I am sure that when this is pointed out to the parish council, it will retract the order.

Keep sending your questions and comments and let's continue to explore A Matter of Land. Until next time, traverse well.

- Craig Francis is a commissioned land surveyor and managing director of Precision Surveying Services Ltd. He can be contacted for questions or queries at craig_r_francis@yahoo.com or his Facebook page Precision Surveying Service

 

Editors note: The parish council has since retracted the order to demolish the building and the sale proceeded based on the advice given.