It is not uncommon for persons selling or purchasing land to be faced with breaches in the covenant or even encroachment on the land being sold. If there is a mortgage in place, the mortgage institution becomes very concerned and generally takes steps to have the matter corrected, but in the case outlined below, someone might have overlooked something. The reader outlines the problem.
"Good morning. I need some advice about a house I bought from a man in 1997 through the National Housing Trust (NHT). The back part of the property went over a little on someone else's land in which the owner of the land was aware from the first owner of the property. Is it possible for that person to take legal action now when they were aware of the situation for 16 years? Please for your advice".
I believe you should make an appointment to see someone at the NHT legal department to discuss this matter. By buying the house through the NHT I believe that you are saying that the NHT provided the mortgage, which enabled you to come up with the balance of the money to complete the sale. If that were so, it would have been highly irregular and indeed unusual for NHT to have overlooked this breach or encroachment.
You will recall that it was a requirement to have certain documents in your possession to even attend the NHT interview.One of the documents you were required to have was a surveyor's identification report. This report from the surveyor would have reflected a breach of covenant or encroachment.
Fix the problem first
Under normal circumstances, it would be highlighted in the surveyors report and at the time you attended the interview at the NHT to secure the commitment letter, you would have been told by the NHT that something must be done to fix this problem.
The usual requirement is for the vendor's attorney-at-law to give to the NHT an irrevocable undertaking to modify or discharge the breach of covenant or to correct any encroachment on the land.
For instance, it is usual where a wall is out of line and encroaches for the offending part to be knocked down or removed and a new survey report done to show that the encroachment has been fixed.
In addition, NHT would not have paid out all the money due to the vendor. An amount representing the costs and legal fees to correct any breach or encroachment would be withheld by the NHT and this is only paid out after the problem has been corrected.
Therefore, in your case, it is very likely that the NHT had in place an irrevocable undertaking from the vendor's attorney-at-law and also is withholding money to correct the breach or encroachment. In light of this, it might only have been an oversight by someone and I am sure that a meeting with the NHT's lawyers would shed some light on the problem and put you at ease.
To answer your last question, with respect to boundaries, the Limitation of Actions Act provides that where the lands of several owners touches each other and a reputed boundary has been established, acquiesced in by the proprietors for the space of seven years, such reputed boundary shall be deemed and adjudged to be the true boundary.
Based on my understanding of the law, it is not just knowledge of the existence of the encroachment, but there must be some kind of acceptance that this is the new boundary. I am not sure if this is your case but I would need to know more.
Go to the NHT.
Keith N. Bishop is an attorney-at-law and partner in the firm of Bishop & Fullerton. He may be contacted by email at knbishop@gmail.com.
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