Deeds plan incorrect - sale fell through

smithydesign

My friends bought their house newly built 45 years ago (leasehold), and the deeds were retained at that time by the mortgage provider. At that time, there was no requirement to register with Land Registry. They received the deeds a few years back once the mortgage was paid off, but never thought to look through them in detail after living there so long. They recently put the house up for sale, found a good buyer, everything was going smoothly. They were due to move out on Saturday, but yesterday the buyers solicitor flagged that the boundary was in a significantly different place on the plans in the deeds, and the mortgage provider has refused to lend the money, leaving everyone in a very difficult situation, since the buyer has terminated rented accomodation, and my friends have comitted to new rented acomodation, and moved most things out already.

On closer inspection, it seems that the plan on the deeds shows building outline correctly, but shows the surroundings as they were before the house was built. The site was not level, and had a steep bank at the back of the house, shown on the deeds as the boundary line. The builders levelled off this bank, moved it back from the house, then built the back garden fence along the top of it, my friends bought the house like this, and as far as they knew the fence was the boundary.

Now it seems that my friends have been unlucky here, since the neighbouring properties are both in a similar situation (the bank continues along the back of those houses as well), but the issue was never raised when they were sold on from the original owners some years ago. What seems to have happened with the neighbours is that the sale went through normally, and the buyers solicitors registered the plots with land registry according to as built boundaries, without the deed plan issue being raised.

Right now I'm trying to establish the best course of action to get the house sold as quickly as possible. What can my friends do about the wasted expense with solicitors/surveyors etc. considering that they bought the house and land in its current state, and are vitims of someone elses mistake?

The solicitor for my friends seems very vague about the best course of action, and the timescale/cost, which concerns me. As I understand it, they will need to apply for a statutory declaration that the boundary as existing is correct. Does anyone have experience with this sort of thing? Any info on the process, and likely cost/time? Appreciate any feedback.
smithydesign Posts: 1Joined: Tue Oct 20, 2015 2:46 pm

camptownraces

Your friends' solicitor is the person to advise, that's what they're paying him for.

A solution will probably included gettting statements of truth and other written evidence that the land has been used in such and such a way for the last 45 years, and getting an amended plan accepted at HMLR.

There's a Land Registry Rep who patrols this forum - let's hope he's here soon.

G_M

First Registration with the Land Registry can be done either voluntarily at any time, or must be done Mandatorily when a sale or mortgage takes place.
In this case I'd have thought a Voluntary First Registration is best, with a smooth sale taking place thereafter based on the electronic Title.

But 1st registration can take time, especially if there is a complication, as here. The Land Registry rep here has said in the past that they try to speed up matters if they are informed a sale is dependant on them - how much difference that makes I don't know.

The good news I imagine is that 45 years uncontested use, once evidence is provided, should be sufficient to alter the boundary.

Wasted costs? The only possible claim would be against the solicitors (if they used solicitors) who did their purchase conveyancing 45 years ago. That should be fun! Have they got legal cover with their house insurance?

They were due to move out on Saturday, but yesterday the buyers solicitor flagged that the boundary was .......

It's unclear if they had Exchanged Contracts.

* if yes, I would think they can enforce the sale. What has their solicitor said?

* if no, why on earth have both they, and their buyer, made legal commitments relating to tenancies that are dependant on an uncertain Exchange?

franklee

G_M wrote: »

The only possible claim would be against the solicitors (if they used solicitors) who did their purchase conveyancing 45 years ago. That should be fun! Have they got legal cover with their house insurance?

I would have throught the solicitor doesn't normally see the plot in person so he won't know if the boundary is shown correctly or not. I'd suppose it's up to the buyer to check and verify the plan is accurate when purchasing. It's probably quite common for new build plans not to match reality if the builder changes things but submits an out of date plan by mistake. Happened to me years ago but fortunately I spotted it and got it corrected during the process of buying.

smithydesign

Thanks for the advice guys. Got in touch with an old family friend who is a long time solicitor last night, looks like they might have to apply for Possessory Title via the First Registration process for the land in question, as well as First Registration with Absolute Title over the rest of the plot.

smithydesign

It's unclear if they had Exchanged Contracts.

* if yes, I would think they can enforce the sale. What has their solicitor said?

* if no, why on earth have both they, and their buyer, made legal commitments relating to tenancies that are dependant on an uncertain Exchange?

Unfortunately no, exchange had not taken place. Both buyer and seller here are a bit to old and trusting to imagine anything was out of place, and it was a very log time ago for both since they last did something like this. No excuse I know, you or I would have probably checked the deeds before putting the house on the market.

smithydesign

First Registration with the Land Registry can be done either voluntarily at any time, or must be done Mandatorily when a sale or mortgage takes place.
In this case I'd have thought a Voluntary First Registration is best, with a smooth sale taking place thereafter based on the electronic Title.

Ironically it seems that if they had 'misplaced' the deeds plan, and registered with a highlighted OS plan (which is correct to the existing boundary), with photo evidence if required, then this issue would never have arisen. They still want to sell the this particular buyer, and he still wants the house, so now they are going to have to resolve the discrepancy.

smithydesign

Wasted costs? The only possible claim would be against the solicitors (if they used solicitors) who did their purchase conveyancing 45 years ago. That should be fun! Have they got legal cover with their house insurance?

Yes, it seems unlikely they will be able to recover costs, although they did use a solicitor origianlly, and they still exist locally. I'll look into the insurance, that might be an option.

davidmcn

smithydesign wrote: »

Yes, it seems unlikely they will be able to recover costs, although they did use a solicitor origianlly, and they still exist locally.

They'd need to do some sort of reverse Marty McFly - by my calculations they were out of time in 1985.

Anyway, depending on what exactly the facts are, it sounds like their case is "the builders gave us some extra land for free, we've been enjoying it without a problem for 45 years, and now we want to sue someone"?

moneyistooshorttomention

davidmcn wrote: »

They'd need to do some sort of reverse Marty McFly - by my calculations they were out of time in 1985.

Anyway, depending on what exactly the facts are, it sounds like their case is "the builders gave us some extra land for free, we've been enjoying it without a problem for 45 years, and now we want to sue someone"?

That's about what it sounds like to me.

Hence - I, for once, agree with going down the "adverse possession" route and doing what that family friend solicitor is suggesting re Registration. No-one appears to have deliberately nicked land here or have lost land they own/intend to keep there. So - I guess this is the way to go in this instance.

Land_Registry

As posted already it sounds as if you have come to the right conclusions re applying for first registration now and then look to sell.

As mentioned solicitors will rely on the buyers to confirm that what is registered/shown in the deeds matches what they are buying as they are the ones viewing the property. But as also mentioned not everyone spots such things so you could have a whole series of sales happen before you arrive at the one buyer who queries it and everything stalls.

If they have been in occupation for all those years and provide the required evidence then there is always a chance, maybe small, that absolute title would be given to the whole plot. However every application is treated on merit in light of the deeds, stat dec and adjoining registrations so you simply cannot tell before submitting it.

Timescales do vary but you are probably looking at 3/4 months for a first registration plus a bit more in cases where we have to visit the site, which tends to happen where land is being claimed.

As mentioned the application can be expedited if there is an onward sale for example but we need the applicant to provide details of the sale and a request to expedite - if we can then speed it up we will but if things are not in order for example additional delays can arise.