Complicated garden dilemma

StarvingArtist

We are in the middle of buying a house with a garden that, it has turned out, is only partly shown on the title plan. The far end of the garden is missing from the plan. It is shown as unregistered land, along with the end of the garden backing on to it and all of the neighbouring garden along one side, although there are fences, hedges and trees along the boundaries in reality. Having researched the area online, the houses are all very old (almost 200 years) and quite a lot of the gardens are not registered and even some of the houses themselves aren't either. Possibly it's an area where people are rather relaxed about such things and sort it out between themselves but I would be wary of perhaps encountering an awkward neighbour in the future if our boundaries weren't clearly defined.

The previous owner signed a statutory declaration to demonstrate that he had owned and used this unregistered area at the bottom of his garden for 10 years without any problems before selling it on to the current owner.

The current owner has lived at the house for 3 years but, unfortunately for us, hasn't bothered to claim the possessory title that he would have been entitled to due to 12 years having passed since the original declaration was signed. Our solicitor tells us it could take months for the seller to sort out a possessory title before we buy and that our other option is to get him to sign another statutory declaration for us, together with indemnity insurance against the unlikely event of an owner armed with some deeds turning up. Although this would solve the problem in the short term I feel it is a bit like passing the problem on to us to get the possessory title sorted out and I am wary of not so much the time but the cost involved, or the possibility of finding out it might not be possible at all.

Has anyone sorted out a similar problem and is it straightforward enough to organise a possessory title oneself perhaps, considering there has been adverse possession already for over 12 years? If it is just a question of liasing with the Land Registry then it would seem to be something we could organise ourselves post-purchase but if it would have to involve solicitors then it becomes expensive. I did ask our solicitor if it might be an option to ask the seller to lower the purchase price to reflect the cost of obtaining the possessory title if we were to take this on ourselves but his reaction suggested this was a bit over the top?

Sorry for the mountain of text and if anyone has advice or wisdom to share about what's best to do I would be very grateful.

Slinky

There's a Land Registry user on this board, hopefully they will spot your question and provide your advice.

@Land_Registry

AdrianC

StarvingArtist said:

We are in the middle of buying a house with a garden that, it has turned out, is only partly shown on the title plan. The far end of the garden is missing from the plan. It is shown as unregistered land, along with the end of the garden backing on to it and all of the neighbouring garden along one side, although there are fences, hedges and trees along the boundaries in reality. Having researched the area online, the houses are all very old (almost 200 years) and quite a lot of the gardens are not registered and even some of the houses themselves aren't either. Possibly it's an area where people are rather relaxed about such things and sort it out between themselves but I would be wary of perhaps encountering an awkward neighbour in the future if our boundaries weren't clearly defined.

They are clearly defined. It's just that some are clearly defined on a registered title at the Land Registry, others are not - they're only defined on old paper deeds. If you can find them and the person who owns them/it.

Anything that's changed owner in the last few decades has to be registered. Otherwise, it's entirely voluntary as to whether the owner wants to register it.

Right now, what you are buying is what is registered on that title. No more, no less. That title will be registered into your name on purchase.
With that purchase, you are also getting a back-story and hopefully some documentary evidence that should allow you to claim unregistered land that the current owner does not seem to be aware they own, or does not particularly care about.
Perhaps the previous owner died, and whoever inherited his property is now the owner, but doesn't realise it. Perhaps there's been a couple of generations since the ownership was last actively known about.
Perhaps they were a company that closed down.
There is no easy way to find out who the owner of that unregistered land, precisely because it IS unregistered. You have no idea if the bit of land you have your eye on is all or just a part of what they own - they may still have the deeds that show that, or they may not. Perhaps the previous owner died in a house fire that also destroyed those deeds.

If and when you take ownership of that land, it will have to be registered, and that registration will define the boundaries of the land you have taken ownership of.

The previous owner signed a statutory declaration to demonstrate that he had owned and used this unregistered area at the bottom of his garden for 10 years without any problems before selling it on to the current owner.

The current owner has lived at the house for 3 years but, unfortunately for us, hasn't bothered to claim the possessory title that he would have been entitled to due to 12 years having passed since the original declaration was signed. Our solicitor tells us it could take months for the seller to sort out a possessory title before we buy and that our other option is to get him to sign another statutory declaration for us, together with indemnity insurance against the unlikely event of an owner armed with some deeds turning up. Although this would solve the problem in the short term I feel it is a bit like passing the problem on to us to get the possessory title sorted out and I am wary of not so much the time but the cost involved, or the possibility of finding out it might not be possible at all.

Has anyone sorted out a similar problem and is it straightforward enough to organise a possessory title oneself perhaps, considering there has been adverse possession already for over 12 years?

It's exactly the same process for you to do it as for your vendor. This tells you how to do it...
https://www.gov.uk/government/publications/adverse-possession-of-registered-land

Can you DIY it? You tell us. There's nothing legally preventing you... It's entirely up to whether you feel confident that you can do the paperwork correctly.

princeofpounds

With two statutory declarations of over 12 years, you shouldn't have any problems registering the additional land unless the owner pops out of the woodwork and provides evidence that those claims are outright untruths. With a bit of due diligence on old aerial photos and maps you can probably satisfy yourself that the claims are likely to be true, but it's not strictly necessary. Personally I would be ok to buy with the arrangement you suggest, although I'd want some money off for the hassle.

StarvingArtist

Thanks Slinky, AdrianC and princeofpounds for your advice. Much appreciated. I hadn't spotted the Land Registry thread but now you mention it there is someone on there with a similar problem but who has decided to wait for the vendor to sort it out. It is good news if it might be possible to complete the process of claiming the possessory title ourselves but, yes, I am feeling it is quite a bit of hassle and maybe worth asking the vendor for money off as princeofpounds suggests.

AdrianC

Of course you can ask the vendor to renegotiate the price... If they refuse, then what? Are you prepared to walk?

StarvingArtist

Hi Adrian - no, it was more in the hope that they might be reasonable and agree. If you don't ask, and all that ...

AdrianC

Can you give us an indication of what sort of proportion of the garden is subject to this adverse possession claim?

There's a strong counter-argument to your position to say that the paperwork has never caused any issue in the last decade and a bit, is massively unlikely to now, and really it makes precisely zero difference in the day-to-day living in the property. So what possible grounds are there...?

StarvingArtist

I'd say roughly a third of the garden. I agree that it probably makes no difference in day-to-day living but it was presented as part of what we were buying when viewing and I imagine, if left unresolved, would make the property more difficult to sell if/when the time came. I agree with you that the seller might just refuse and say it's not really a problem though.

davidmcn

It can be resolved though (or insured against at modest cost) - I doubt you could demonstrate that it makes any material difference to the market value of the property.

AdrianC

StarvingArtist said:

...but it was presented as part of what we were buying when viewing

I'm not saying the vendor lied - and, of course, the EA can only tell you what the vendor told them. It's entirely possible that the vendor simply forgot the paperwork was a bit different for that bit to the rest - or there was a bit of chinese whispers.

Your solicitor has done the job you're paying them for, in determining the truth of the situation. You have worked well with them in actually bothering to look at the map of the title - you'd be astonished how many don't... Including, quite possibly, your vendor...