Unregistered square of land on property

Kermie

I wonder if anyone can advise on what surely is not a unique problem, but one for which I've been unable to find an answer online or on these forums...
Apologies for the long explanation, but it’s a bit complicated and I thought it better provide all the info in one post rather than in dribs and drabs…
We're buying an old terraced village property which obviously used to have a shared courtyard with waterpump, toilets etc. Over the years, the yard area has been divided creating individual yards/gardens for each property. The property we’re buying has a passageway between us at the neighbour on the left which allows access from the rear of both our properties to the street. The neighbour on the right of us also has access to this passageway, via a right of way, through our yard. We were told this when we first viewed the property and are fine with it. There is a gate at the far end of our right-hand fence from their yard into ours. All fine and dandy, so far.
Our solicitor sent us the Land Registry Title for the property and asked us to let her know if we didn’t agree with the boundary. The title showed our property boundary to include the house, and access through the passageway directly to the outhouse (which faces the passageway) but not the yard area at all, despite our kitchen window facing onto this area. We pointed this out and sent photos to show where the fenceline was. Further investigation shows there were actually two Titles for the property – one for the house itself (with access to the outhouse), and a second one for part, but not all of, the yard. Unfortunately, the current owner’s solicitor obviously didn’t realise this when he bought the house 10 years ago and that part-yard area is still registered to the previous owner. Thankfully, the previous owner is still around, and even more fortunately lives in the same village and is more than happy to transfer this title to the current owner in order that he can sell it to us. So that part is pretty much resolved and we’re just waiting on a charge being removed in order that they can transfer it over.
However, there is a square of land, which is directly in front of our kitchen window and which essentially covers the right of way from the right hand neighbour’s back gate which remains unregistered.
Both the current owner and the previous owner are happy to draw up statutory declarations to support an adverse possession claim on this approx. 3m sq area of unregistered land, confirming that it has been used as part of the yard by the property owners for more than 12 years. Our solicitor is unsure whether this is worthwhile at all, suggesting that the Land Registry won’t even consider it if it’s a right of way. I realise that the Land Registry can’t tell you in advance if an application would pass or not, but if there is an actual rule that no piece of land with right of way can be registered, surely they can’t allow us to apply without this fact being made clear on their website or somewhere. Does anyone have experience of similar, or can they advise if this will definitely be rejected on the grounds of it being a right of way. We have no problem with it being a right of way, and are happy to buy the house even if this tiny piece of land has to remain unregistered, but obviously if we can register it, we’d rather give it a go! Hoping the Land Registry rep can advise…

moneyistooshorttomention

I cant see how your solicitor could be correct in stating that land with ROW cant be registered. After all, I live in an unadopted road and the road-owner has this road registered on their Title Plan, though we all obviously have ROW over it.

Obviously the Land Registry rep will know the ins and outs of this sort of issue though.

jonathanrolande

Speak to your solicitor about Title Indemnity Policies in case anything goes wrong later.

Land_Registry

ninalouise1975 - it is evident that you already have a very good grasp of the issues involved here not only re the adverse possession claim but also the extra ones re the property being registered under two titles

However, you mention that our online guidance is lacking so I am am not too sure if you have read our online Practice Guide 5 as this contains quite detailed guidance around the registration requirements whilst also referring to wider legal matters/case law which are important considerations when dealing with any claim.

Section 2 explains the essentials whilst sections 4 and 5 add details around some of the other points made re giving advice and so on.

Re the specific issue of the right of way it is important to appreciate that we are really dealing with a piece of land first and the right of way over it is to some extent a separate issue. The land will have a legal owner but they are not the landowner(s) who are then exercising a right of way. You are after all seeking to take possession of the land and not acquire the benefit of or deny the other landowner(s) of the right of way.

Your solicitor, I suspect, will be bearing in mind the basic tenet around such claims that the use/ownership of the land needs to be exclusive. That is broadly speaking quite correct but the issue of the right of way, whilst obviously being of importance when considering such an application, does not preclude such an application being made. What it does do though is focus the claimant's mind on ensuring that any supporting evidence is as strong as possible.

Finally, I would add that in my experience and having read numerous online threads re such purchases/claims the seller is invariably encouraged/asked to register the claim first and the buyer then acquires any registered title(s) thereafter. I appreciate that this has to be viewed in the wider mix of issues re timing (the purchase has perhaps already been delayed by the sound of things by the additional title involved) but something to perhaps consider along of course with the degree of 'risk' involved in the legal owner actually coming along and seeking to reclaim their land in some way.

I hope this helps

Note - Highway land, namely that which is maintained at the public expense, is viewed quite differently and the guidance refers to this in Section 5.

Kermie

Thanks all for your replies.
Land Registry Rep - is there any benefit to the current owner sending the application in along with the transfer forms? We've been told there could be a 3 month wait on unregistered land application being processed and as you mentioned, we're already delayed due to the registered land issue, so concerned any long delay may risk us losing own sale. Would the application be split up and sent off to separate departments anyway?

jonathanrolande - what does a Title Indemnity Policy do?

Land_Registry

Who lodges the application makes no difference to how it is viewed/dealt with.

The issue normally faced here is that if you go ahead with the purchase and then seek to register it the seller's are to some extent then 'less' involved. Invariably the contract will include clauses to keep them involved in so far as agreeing to help with resolving any issues that arise etc

The 3 month delay you mention is only therefore really going to impact on how soon after completing the purchase you find out whether you have title to the land.

The application would not be split up

Indemnity policies are available for a wide variety of purposes and act as a means of insuring against the financial risks associated for example in a claim not being upheld and the financial costs involved as a result be that a loss in property value, legal costs etc - all depends on the policy taken out.

As with all insurance policies the terms and conditions are the key to understanding what you are being covered against.

Kermie

Thanks so much. That's so helpful.