House Purchase with 3rd-party Land Registry Error

LagomStina

Hi All, noob here, seeking advice relating to a house purchase in Scotland. 

We are (or were) nearing completion on purchase of a detached house in a rural area of Scotland. Both we and the seller are ready to complete as fast as possible and we seem generally on the same page. 

However, 3 days prior to our original date of entry, our solicitor shared our new title plan with us and asked if it looked okay. We flagged one very dodgy looking boundary where the plot we're buying adjoins that of a neighbouring plot, last purchased (and first added to the Land Registry map) in 2022.

It has since transpired that this part of the boundary of our plan was based directly off theirs because ours will be first registered on the cadastral map as part of this purchase. I.e., they got there first and set the boundary line. 

Our issue is that the boundary on the plan does not (in our opinion) reflect the existing fence in reality, nor does it align well to the boundary shown on the underlying OS map. We suspect it's a genuine error from the 2022 purchase. We have tried contesting it with little/no support, advice, options etc. from our own solicitor. She seems to simultaneously invite us to accept the boundary "as is" on the basis of OS map tolerance (having ignored the up to 3m loss of land we outlined to her by overlaying the plan onto an aerial photo showing the current fence line) AND keeps saying we must make sure its "right" for the mortgage lender (on paper only I assume, especially since mortgage lender had agreed to lend on the priority despite not seeing it in reality, not having an existing plan to reference). But she seems to have little interest in questions we have asked about how best to handle this and just keeps talking in circles in our view.  We're not sure if she's playing us for a quick and easy job, or if she's in over her head and doesn't understand our point out how vector maps work.

But here's the Crux: 

1) We have very little appetite to create any further delay... We're truly desperate to get a home again at this point, for a variety of life and financial reasons. The seller feels similarly, and this boundary issue is as much of a surprise to him as to us. Costs are mounting on both sides.

2) Were the existing fence moved to match the new plan tomorrow, we would still want to buy the property. We do have some reservations with it, but not remotely enough to make us want to pull out of the purchase entirely.

Consequently, we would like to go ahead with the sale, even knowing there is likely an error on the title, and ideally with a view to correcting it one way or the other *after* purchase. However we're not sure what the risks would be to us if we did this and our solicitor ignores most of our questions. 

Can we seek to correct after purchase even though, by that point, we would have effectively registered our own title in agreement with the first? 

Or, if we ignored the issue until such a time as a) someone officious moved in next door and tried to move the fence to match the plan, or b) we decide to sell knowing the fence doesn't match the plan, what happens then? Do we have any recourse at that point?

Any advice much appreciated.

Thanks, Stina

user1977

Yes, you can sort it afterwards (assuming the neighbours are cooperative), it makes no difference to "your" property's rights against the neighbour whether or not your property has changed hands. If no further delay to the purchase is desired, and the area with the discrepancy doesn't include anything vital (e.g. buildings or access) I don't see any great harm in taking a view on it for the meantime and going ahead.

Without going into too much detail, the neighbours' rights to the area are limited if they've never actually occupied it.

LagomStina

Thanks so much for your reply. Very reassuring to get some feedback on this.

You say:

Without going into too much detail, the neighbours' rights to the area are limited if they've never actually occupied it.

Is that something you know from within Scot's law? My research on this angle is less than on other aspects, but I gather that "adverse possession" in Scotland is more complex than in England in that it isn't sufficient merely to possess an area for a period of time, there has to be something in the Title too, but that's as far as I got with that lead.
Is adverse possession what you were alluding to, or are you referring to something else in law that it might be useful for me to get my head around?

Many Thanks! -Stina

LagomStina

Help, we're still having issues with our solicitor on the above situation (Scotland).

Tl;dr: We want to by a house with a dodgy boundary that was already registered a few years ago by a neighbouring property. We contested it at first, but have since backed down and said we'll accept the existing boundary "in good faith" because we want the property regardless (and hope we can sort after purchase), but our solicitor is proving a massive stopping point and we're scared the seller will pull out.

Even though we've accepted the boundary as-is, she now asks that we meet the seller on site to look at the boundary together, because apparently that will magically make it okay with our prospective mortgage lenders (who know nothing of this so far). We don't know what possible outcome might result from such a meeting between two sets of non-surveyors that could alter our solicitor's ability to proceed with our purchase and drawing of mortgage funds.

What's she talking about/playing at? Can anybody advise?

user1977

Nope, no idea. If you don't understand your solicitor's advice, tell them! Not much point paying for advice if you don't understand it... have you actually spoken with them? If so, what you do is carry on talking until you understand...

silvercar

LagomStina said:

Help, we're still having issues with our solicitor on the above situation (Scotland).

Tl;dr: We want to by a house with a dodgy boundary that was already registered a few years ago by a neighbouring property. We contested it at first, but have since backed down and said we'll accept the existing boundary "in good faith" because we want the property regardless (and hope we can sort after purchase), but our solicitor is proving a massive stopping point and we're scared the seller will pull out.

Even though we've accepted the boundary as-is, she now asks that we meet the seller on site to look at the boundary together, because apparently that will magically make it okay with our prospective mortgage lenders (who know nothing of this so far). We don't know what possible outcome might result from such a meeting between two sets of non-surveyors that could alter our solicitor's ability to proceed with our purchase and drawing of mortgage funds.

What's she talking about/playing at? Can anybody advise?

The hope is that you see that the issue is minimal, you report back to your solicitors the same. The solicitors report to the mortgage lender that you have made a site visit where it has been demonstrated to you that the issues are small/ not material/ far less than first thought and the mortgage lender then agrees to lend. 

Lenders have written guidance on what they will accept, so they may go with this.

LagomStina

Thanks Both, this is helpful...

user1977 said:

...Not much point paying for advice if you don't understand it... have you actually spoken with them? If so, what you do is carry on talking until you understand...

This is our key frustration. We've tried to be careful not to bombard, but by this point we've sent so many emails that ask explicit questions like

• "What is the protocol in a situation like this?", 
• "What would our legal position in future be if we went ahead regardless and tried to correct registry afterwards?",
• "What sort of time-frame might we be looking at, days, weeks, or months?" (if we get a survey and try to correct the registry beforehand) 

.... the vast majority of our questions have gone unanswered - she abandons email threads and starts new ones from a different angle based on spurious arguments from the seller side (acceptable OS tolerance), or she just responds in circles explaining things that we've already covered, or saying she'll clarify stuff with the seller that we have emails from her suggesting has already been clarified two weeks previous. If we try to get her on the phone she's always busy (fair enough), but then she rings back just as she's heading out at end of day with a brisk explanation and no time to discuss.

Should we expect clearer answers to questions like these from a conveyancer? Or is it more of a literal "conveyer" transaction that we just have to step back and watch?

The lack of effective comms leaves us feeling unrepresented and, if we lived somewhere like London still, we'd be shopping for a new conveyancer already (not that we could ever dream of buying in London). But we're talking a tightknit rural area here where everyone knows everyone, and as newcomers we're scared to get a reputation for being stroppy. All the solicitors in the town know each other and are probably working in cahoots with each other anyway.

LagomStina

Thanks, this is also useful insight...

silvercar said:
...The hope is that you see that the issue is minimal, you report back to your solicitors the same. The solicitors report to the mortgage lender that you have made a site visit where it has been demonstrated to you that the issues are small/ not material/ far less than first thought... 

BUT, we previously made a site visit on our own, taking the best measuring tape we could find (difficult, cos whole life in boxes), and measured up to 3.4m discrepancy at the widest point. This is with huge margin for error and definitely not doing things properly, but unlikely that we're so far out that the sellers +/-0.9m OS tolerance argument could still work.

We originally reported this to our solicitor and sent an illustration overlaying the title plan onto an aerial photo and outlining the clearly visible wedge of land that the title plan boundary fails to incorporate (but which the underlying OS map does mostly incorporate).

So, hasn't that horse already bolted?

Our solicitor did not respond to this email, but started a new thread with the same tolerance argument from the seller that she had shared with us previously. Cyclic, and apparently more interested in what the seller has to say than in what we have to say.

Was she maybe trying to help us in the weirdest of ways by categorically ignoring most of our questions and evidence that there's a genuine issue here?

Originally we wanted to flag this issue and learn our options depending on whether the fence or the plan were found to be in error, but ... nothing. As non-experts, without advice, we can't make informed decisions, and the only advice we're getting seems to be unverified non-expert advice from the seller/seller solicitor about how OS maps work. Our own solicitor ignored all our questions in this direction. And, where she does respond, we get the distinct impression that she doesn't understand how vector maps work, for example.

LagomStina

silvercar said:
Lenders have written guidance on what they will accept, so they may go with this.

This is interesting and might help explain her perspective. I will hunt lender's written guidance - would be interested to see.

Our confusion here is that the property has not been sold for 30+ years so is unregistered on the cadastral map. I bought what I could access of the title, and it contains little to no written description of the extent of the plot either. Weirdly sparse to me.

Our assumption is this sparse info is what the lender also has access to and already agreed to lend on, so then why would they piddle over 1-3m of land that they never had record was included in the first place?

I can only assume their issue would actually be if the boundary is known to be in dispute, irrespective of where it actually sits, because of the risks that such a dispute poses?

Because we want the house regardless, we decided to back down and stop disputing the boundary over a week ago. We have not said it's wrong since, although we're reluctant to put on record that we categorically think it's right either, since we would like to pick this up and sort it in future if we can and have to worry about our own paper trail.

We still genuinely believe the whole issue to be a fairly small and simple Registers of Scotland error from a previous solicitor who did a quick job without scrutinising sufficiently, and we'd love to have a discussion with our solicitor about this possibility, but to no avail, so we have given in. Now we worry about losing the whole house if the putative lender requirements can't be met, or if the seller gets tired of waiting.

user1977

LagomStina said:

Thanks Both, this is helpful...

user1977 said:

...Not much point paying for advice if you don't understand it... have you actually spoken with them? If so, what you do is carry on talking until you understand...

If we try to get her on the phone she's always busy (fair enough), but then she rings back just as she's heading out at end of day with a brisk explanation and no time to discuss.

Then try to explain to her that you do actually need to discuss it with her in order to progress the transaction.

And yes, of course you should be getting adequate advice from her. Have you actually said to her that you're unhappy with the quality of her advice so far?

silvercar

https://lendershandbook.ukfinance.org.uk/lenders-handbook/

Use this and search for your lender. It will tell you the lenders ruling one certain matters