Possessory Title

Sasperella1

Hi,

We are buying a house and desperately trying to complete by this Friday. However there is an issue with the parking space which comes with the house (it is a separate piece of land).

To cut a long story short when the current owner bought the property 15 years ago the parking space which comes with the house was never conveyed properly and consequently at the land registry title it is still in the name of the people who the current owner bought the property from. The previous owners have never laid claim to the land and indeed believed the parking space was part of the sale the the current owner.

The sellers solicitor has suggested that to move this forward they get an afferdavid signed by the current owner stating the believed the parking space belonged to the property and that they have been using it for the past 15 years. They have then suggested that we apply for possessory title of the land which can be done after completion.

I have told my solicitor we are happy with this as a way forward but they keep saying they have to make sure the mortgage lender is happy with this. We have checked with our financial advisor and he does not think there should be an issue with the lender.

After reading some posts on here I was after a bit of advice!

Is this sensible as a way forward? Will we have any issue selling the property in the future? Do we need to do anything else?

Thanks

oldwiring

http://www.propertylawuk.net/adversepossessionsquatters.html is about possessorytitles and may be interesting. AFAICS from article it involves being there for a number of years, so wouldn't the vendor have to acquire not you as buyer? IIRC some form of indemnity insurance may be needed

Richard_Webster

I have told my solicitor we are happy with this as a way forward but they keep saying they have to make sure the mortgage lender is happy with this. We have checked with our financial advisor and he does not think there should be an issue with the lender.

Financial advisers don't know much about these technical legal points because they do not deal with them. Solicitor has to check with lender because house with no parking space could be worth less.

If you can get a possessory title then you would still need the seller to provide a possessory title indemnity insurance. It is the seller or his previous solicitor's fault that the land was not included - people just don't check plans and ask things like "Where's the parking space then if I'm supposed to own it?"

The Land Registry might be a bit picky about whether your predecessor has shown adverse possession because usually if it is one of a number of such spaces there is no physical way of excluding others in practice so they would want to see evidence that it was used exclusively etc. Your solicitor would need to be happy that there was enough evidence of adverse possession for a successful claim to be submitted.

This sort of thing happened to clients of mine a few years ago. Builder sold house in 1968 to Mr & Mrs A . In those days it was the fashion to offer newbuilds with a garage as an option which could have or not as you fancied for extra money. A few months after that Mr & Mrs A bought garage separately - separate Land Registry title etc. They sold house in 1980 to Mr & Mrs B who sold it again in 1988 to my clients. On both occasions nobody asked about the garage. They all assumed that the garage had gone with the house and handed over the keys etc.

In 1999 when acting on the sale I read the estate agents particulars and asked my clients where the garage was. They told me that it was on a separate plot a couple of doors along the road. I checked and found it still belonged to the people who bought it in 1968.

We got a neighbour to do a statutory declaration saying that both my client and his predecessor had used the garage for X years ( we needed the neighbour because my chap hadn't got the required 12 years in). Sent it all to the Land Registry with an explanation to get a possessory title and lo and behold the Land Registry actually managed to find the people who bought in 1968 who had moved elsewhere (they have an alphabetical list of registered property owners). These people conceded that they had intended to transfer the garage in 1980 and the result was that my people ended up with an absolute title! So in OP's case if it was a foul up (depending on the nature of the foul up) it is possible he might be able to get the same concession from the present paper owners and get an absolute title that way.

As a conveyancing solicitor I believe the information given in the post to be useful but I accept no liability except to fee-paying clients

Sasperella1

Hi,

Thank you for the advice and follwoigna couple of phone calls yesterday the solicitors have finally sorted out a way forward which I think everyone is happy with!

The current owner is going to sign a statutory declaration and they are also going to take out indemnity insurance so monetary wise we are covered if the registered owners ever try to take possesion of the land. I am guessing we can then apply for possessory title or absolute title (if we are lucky) after we have completed.

Thanks again!