I feel sick - solicitor has been negligent. Please help!

foreversummer

CFC wrote: »

Professional people commit crimes, just as other people do. I am very sorry that you have been the victim of a crime and I totally sympathise. However I think that you need to get some perspective on this:

Not all solicitors are criminals or even sycophantic workshy lackwits
Strangers on here have offered you advice out of the pure helpfulness of their hearts
One of them happens to be a solicitor.
There is still kindness and goodness in the world.
Don't let the criminal give you a false perspective of the world and make you bitter and twisted, because if that happens, you've lost a hell of a lot more than money. We don't have a choice in what happens to us and life can be very hard and unfair, we only have a choice of how we decide to let it affect us.
Very best of luck and I hope you reach a point with your issue where you get some kind of closure.

I wholeheartedly agree and think CFC has summed it up perfectly.

Now going back to my garden and the piece of it I apparently do not own . . . !

As you may remember, I have complained to the Senior Partner. I will post again once I hear what he has to say.

Foreversummer

Twopints

I have a similar issue with part of my back garden which is not currently registered to me. This arose when I bought my house in 2001 and the solicitor/conveyancer omitted to mention that (all) of the property was, up till then, unregistered. He also failed to discuss with me the implications of this! This was not helped by the solicitor being miles away and appointed by my company (it was a relocation) rather than myself.

Net result was that the property was incorrectly registered. This came to light when I remortgaged and I had to take out Defective Title insurance which, I hope, covers me in case of anyone claiming to own part of my garden.

I think I will call the Land Registry to see what they say!

foreversummer

Hi Twopints

Probably a good idea to check with Land Registry and get their take on it. I find them very helpful and the lady I have spoken with on a number of occasions has really taken the time to explain things to me.

Mine is a little different in that although my property was unregistered when I bought it, the part that I do not own was already registered to someone else. My solicitor had all the information there, including the title number and correspondence between the owner and our vendor going back some 13 years, and still managed to omit to tell me.

Have you ever considered Adverse Possession, although you do have to prove that it has been part of your garden for 12 years I think with unregistered land. If it is unregistered the person to whom it belongs may not even be aware of it. Again talk to Land Registry and they will tell you your options.

Foreversummer

Nicki

Hi Forever

I seem to have lost sight of your issue somewhere along the way, and apologise for this!

Have you seen a copy of the register in relation to the disputed land? If not, can you ask your solicitor to get a copy asap, so that you can check to see whether there are any covenants benefitting your property registered against this land. I would imagine for example that there may well be covenant preventing there being any building on it. I appreciate it is a small strip of land, however this would be of some comfort to you.

As for it becoming a waste ground for youth to hang out on, I imagine that the original owner wouldn't want this either. I would be inclined in your shoes to keep maintaining it as though it is your own, so that it is not apparent to the local youth that it is a patch of land onto which they can come. Odds on the original owner won't object to this.

Worst case scenario is that he bought it as a ransom strip, in which case you might have to buy it off him. Sounds scary but its unlikely he would get anyone else to buy it off him, so the negotiating position is not all one way (and I would think you will be able to claim the costs of that from your solicitors as a loss caused by their negligence). If all else fails, and he turns up getting stroppy, he may let you rent the use of it from him. We're looking at a house where the last 10 feet of the garden is owned by the British Waterways to give access to a canal, but the owner of the house has a right to use the land as part of the garden for a nominal sum per year.

Don't come to any agreement without appropriate legal advice, as you don't want to mess up any chance of adversely possessing the land, but as you've already been advised this takes 12 years from the date of last contact with the owner, so its unlikely this will be an option. I do feel quite optimistic though that there will be a good solution to this one - just a shame its caused so much stress at this point.

foreversummer

Hi Nicki

Nicki wrote: »

I seem to have lost sight of your issue somewhere along the way, and apologise for this!

Yes, I was beginning to lose sight of my problem also - blessing probably, lol.

Nicki wrote: »

Have you seen a copy of the register in relation to the disputed land? If not, can you ask your solicitor to get a copy asap, so that you can check to see whether there are any covenants benefitting your property registered against this land. I would imagine for example that there may well be covenant preventing there being any building on it. I appreciate it is a small strip of land, however this would be of some comfort to you.

Yes, and there are no covenants as far as I am aware. The chap that owns the strip is the original land owner who built this house, and five others. He also still currently owns land on the opposite side of the road. Land Registry say that from their records the boundary has always been where it is now.

Nicki wrote: »

As for it becoming a waste ground for youth to hang out on, I imagine that the original owner wouldn't want this either. I would be inclined in your shoes to keep maintaining it as though it is your own, so that it is not apparent to the local youth that it is a patch of land onto which they can come. Odds on the original owner won't object to this.

To be honest the owner probably wouldn't care as he lives some 20 miles or so from the village. The land is very much part of our garden and if you saw it there would be no doubt in your mind that it is ours. It is planted with shrubs, trees and lawn. The top end of it has been incorporated into our driveway by the previous owners. Our whole garden, including the strip in question, is enclosed with a 5ft lap larch fence.

Nicki wrote: »

Don't come to any agreement without appropriate legal advice, as you don't want to mess up any chance of adversely possessing the land, but as you've already been advised this takes 12 years from the date of last contact with the owner, so its unlikely this will be an option.

This is very interesting though. As we can prove by Statutory Declarations that the land has been incorporated into the garden since 1987, it is my understanding that we can apply for adverse possession. Neither my solicitor, nor Land Registry, have mentioned that the last date of contact with the owner has any bearing. Clarification on this point would be much appreciated.

Foreversummer

Nicki

My understanding was that you had to show 12 years uninterrupted possession without the owner asserting his rights at any point. It depends therefore what the nature of the contact in 2006 was. This is why you often see little signs up on odd pieces of land saying "this land is owned by x but they agree to you walking across it" It's a tricky area of the law though, so if you could persuade the owner to sell it to you for a pittance, that would be far and away the easiest and most stress-free way to go, particularly as I say if you can get your solicitors to bear the purchase price in recognition of their mistake on this.

It is odd though that there aren't any covenants benefitting your land, and this is another thing I would have expected your solicitors to pick up on. It certainly sounds as though they didn't even look at the map with title deeds when you purchased and so didn't realise that this piece of land was owned by a third party. That is clear grounds for a negligence claim, I think.

From what you have said, though I think that in practical terms, you have relatively little to worry about. I was concerned when I read one of your posts about the local hoodies (my word not yours) hanging out in your front garden, but it sounds like this is extremely unlikely to happen. It also doesn't particularly sound like the owner is going to be hugely difficult, though it would be very interesting to know the precise nature of the correspondence he had with the previous owners of your property. Do you know for a fact that this was acrimonious? Perhaps he just contacted them and offered to sell them the land, but they decided to ignore the approach on the basis they wanted to move anyway and didn't see why they should pay to purchase something they wouldn't be using. From your timeline it sounds like the approach was only 6 months before you completed, so it is entirely possible this is what happened.

foreversummer

Hi Nicki

Thank you for your quick response.

Regarding the correspondence he had with our vendors, heregoes:

1. In 1993 he contacted them, via his solicitor, saying that they should remove the fence as the land was his. Our vendors solicitor disputed that it was. (It is interesting to note that it was in 1993 that he registered the land).

2. In 1995, he called at the property and pointed out that the land was his. Our vendor told him that it was not his and that it had been part of the garden when they bought it.

3. Nothing then until 2000 when he asked for the fence to be removed again.

4. 2006 called the the property and pointed out the land was his.

He has never actually instigated proceedings to recover his land.

He has never contact us since we moved in, but he was aware that the property was for sale as when he called last July the For Sale board was up.

The above is according to the Statutory Declaration that our vendor made prior to exchange of contracts, so hopefully it is a true and accurate account of what has gone on.

Foreversummer

Nicki

This all sounds quite promising. Can you get your solicitors to get a Counsel's opinion on whether you already have grounds to adversely possess based on his acknowledgement in 1993 that he had been dispossessed of the land? You should check that your insurance policy will cover you for the owners costs in case you don't succeed, and make your own solicitors act for you for free and meet the costs of counsel. Also make clear if this doesn't work you reserve your right to proceed against your solicitors for negligence.

If the adverse possession works, you would only be entitled to a modest extra sum from your solicitor to compensate you for the stress of all this, as once the land has been registered in your name, you are financially in the same situation you would have been in had they done the job right first time round.

If adverse possession fails, or is not an option then you would be entitled either to:

1. the cost of buying this extra strip of land plus nominal sum for the stress OR

2. the difference between the reduced value of your home and the amount it would be worth had it included the land you thought it did plus nominal sum

Provided the owner of the land will sell it, I would go for option 1 and buy the land. Otherwise, you may find it difficult to sell the property in the future.

I do think there is still a very good chance that this story will have a happy outcome, and that you may yet be able to invite us all round to enjoy a nice glass of wine on your lovely garden fairly soon (hope so anyway!)

foreversummer

Hi Nicki

Yes, I agree, outcome 1 would be best all round.

Adverse Possession worries me in that if we antagonise the owner we may find ourselves in a full-scale dispute battle.

I'll let you know once I hear from the Senior Partner. It will be three weeks next Monday that we put the complaint to him. We have had contact twice in that period and he tells us that we will be getting back to us very shortly. I think I'll give him until the end of next week and then maybe contact him to chase up.

Thanks for your help.

Foreversummer

Nicki

foreversummer wrote: »

Hi Nicki

Yes, I agree, outcome 1 would be best all round.

Adverse Possession worries me in that if we antagonise the owner we may find ourselves in a full-scale dispute battle.

I'll let you know once I hear from the Senior Partner. It will be three weeks next Monday that we put the complaint to him. We have had contact twice in that period and he tells us that we will be getting back to us very shortly. I think I'll give him until the end of next week and then maybe contact him to chase up.

Thanks for your help.

Foreversummer

You need to be careful though. If you decide to ask the owner whether you can buy it off him, you have acknowledged his right to the land, and it will then be more difficult to argue that you and your predecessors have appropriated the land as your own. This is why the whole area is a minefield, and why you need to get specialised advice on the way forward.

In your shoes, I have to say, that, provided Counsel agreed I had a good chance on AP, I would go down that route first, and only thereafter try to buy it, as this gives two bites of the cherry, whereas offering to buy only gives one. Even if you antagonise the owner, he's bound to have a price at which its just too attractive for him not to sell, and even if that price is madly inflated, if your solicitor is paying it not you, its really no hardship to you.

Otherwise 3 weeks to investigate this is really a very generous amount of time, so don't feel pressured into giving your solicitor too much longer to come up with a plan of action. A polite but firm letter in the post today saying that it is now 3 weeks since your first complaint, that you are prepared to give them an opportunity to rectify the matter at their own expense provided that they do so within a reasonable time frame, and that therefore you need to hear from them by next Wednesday with a proposed plan of action, failing which you will take independent legal advice in relation to your rights and remedies against them, is called for I think