Boundary advice required please?

[GARYF123]

Hi everybody,

My first post and hopefully in the correct place!
We are trying to purchase a Railway cottage and nearing completion. Our O/S title drawing from land registry showed the boundaries which appeared correct. However, my solicitor produced a map search diagram that clearly showed approx’ 50% of garden and a brick built garage to be outside the legal boundary. The land was unregistered. Our request to sellers solicitor to clarify this didn’t help but I managed to discover that it belonged to NR.
One of the previous owners, 25 years ago decided to use the space and built a patio and garage on the land and left it approx’ 1 metre short of the NR green palistrade fence. This fence has been replaced in the past and erected in exactly the same place. The existing owner purchased the property 4 years ago and nothing was brought up on the searches.
I was offered an Idemnity policy to cover any possible problems in future but the exclusion was any claim by or on behalf of NR! I obviously declined this. We are so invested in this property as our retirement home but cannot afford to be saddled with legal fees to fight NR. We were willing to pay a reduced figure for the house to reflect the lack of garden and garage but I have spoken to NR planning and property and they inform that at any point, they could send me a letter instructing me to remove the patio and garage at my expense. I am puzzled by this as if I purchase the property, I obviously, according to NR do not own the land so how can I be responsible for it?
Hypothetically speaking, I could move in and build a fence on my known boundary according to the map search and physically isolate the disputed land from mine. Then who would NR come after for the encroachment of the land?

Many thanks in advance,

Gary.

 

[Dazza12]

Hi,

This is a legal question so best suited to being directed at your solicitor but at a very simple level, you can't have your cake and eat it so you have a choice:

1. Make use of the additional land / patio / garage whilst accepting that NR might reasonably require you to remove the patio / garage that has attached to their land at some point in the future; or

2. Ignore the additional land / patio / garage, build a fence on the boundary line and if NR ask you to remove the patio and garage tell them that it was there when you moved in, didn't form part of the sale to you (how could it, it is NR's land?) and that they need to chase whoever erected them (the previous owner of your house?) for any costs.

As I said previously, you need to talk to you solicitor (and I hope they actually are a solicitor rather than a "conveyancer") to get definitive legal advice.

 

[duffield]

All the advice given here will be, legally speaking, worth exactly what you have paid for it. Even if the person posting it has experienced similar dealings with NR their situation may have crucial differences which they do not know of or do not understand.

Even with advice from a legal professional with experience of NR disputes, there can be no absolute certainty in areas like this unless decided in court. NR could still pursue you even if their legal case was ultimately decided to be meritless and that they should pursue the previous owners, and that could still cost you time, money and stress.

My personal appetite for such matters is very low, I'd just walk away. Only you can decide how much stress, time and money you may be prepared to risk.

As far as I can see the only legally watertight avenue is for either the current owner or yourself, after purchase, to remove all structures from the area in question and fence it off along the legal boundary.

 

[thejuggler]

The title plan shows the extent of the property as described in the register.

It is unclear from your post whether your title plan boundary includes the extended garden as by the statement 'appeared correct' it reads as though the red line plan includes this land, but you then state the index plan shows an unregistered area. The issue is the scales of the two plans are vastly different so its important to know if both plans do show the same plot.

You won't now get insurance as it is a risk you are aware could cause a claim to be made as contact has been made with NR. Its a moot point about what NR could or couldn't ask you to do. If they want the land in future they have statutory powers to CPO anyway!

Could you post close up details of both plans?

 

[Bevan Price]

Could you ask NR if they might be willing to sell their part of the land to you ? If they have no foreseeable use for the land, and the price was acceptable, that might be the easiest solution.

 

[MotCO]

Is it definitely the case that NR own the plot of land with the garage? Or does a third party own it?

 

[GARYF123]

Is it definitely the case that NR own the plot of land with the garage? Or does a third party own it?

According to NR, they own it but they told the seller to try find deeds/proof that previous owner purchased the land. That made me think that although they claim they own it and probably do, why didn’t they justshut the debate down by producing the deeds proving NR own it.

 

[AlbertBeale]

If I understand correctly, when you say that on the Land Registry plan the boundaries "appear correct", that means including the extra bit of land that you only realised might be in dispute when your solicitor found another map. But isn't what's at the Land Registry legal evidence of the extent of the property? If so, and you buy the plot as shown at the registry, surely that means it's securely yours, and NR have no claim?

 

[Noddy]

Hi everybody,

My first post and hopefully in the correct place!
We are trying to purchase a Railway cottage and nearing completion. Our O/S title drawing from land registry showed the boundaries which appeared correct. However, my solicitor produced a map search diagram that clearly showed approx’ 50% of garden and a brick built garage to be outside the legal boundary. The land was unregistered. Our request to sellers solicitor to clarify this didn’t help but I managed to discover that it belonged to NR.
One of the previous owners, 25 years ago decided to use the space and built a patio and garage on the land and left it approx’ 1 metre short of the NR green palistrade fence. This fence has been replaced in the past and erected in exactly the same place. The existing owner purchased the property 4 years ago and nothing was brought up on the searches.
I was offered an Idemnity policy to cover any possible problems in future but the exclusion was any claim by or on behalf of NR! I obviously declined this. We are so invested in this property as our retirement home but cannot afford to be saddled with legal fees to fight NR. We were willing to pay a reduced figure for the house to reflect the lack of garden and garage but I have spoken to NR planning and property and they inform that at any point, they could send me a letter instructing me to remove the patio and garage at my expense. I am puzzled by this as if I purchase the property, I obviously, according to NR do not own the land so how can I be responsible for it?
Hypothetically speaking, I could move in and build a fence on my known boundary according to the map search and physically isolate the disputed land from mine. Then who would NR come after for the encroachment of the land?

Many thanks in advance,

Gary.

According to NR, they own it but they told the seller to try find deeds/proof that previous owner purchased the land. That made me think that although they claim they own it and probably do, why didn’t they justshut the debate down by producing the deeds proving NR own it.

Assuming you are in England or Wales if the land is unregistered (as you state in the OP) but has been actively occupied and maintained by the owners of the property you are buying for the last 12+ years (you mention 25 years in your OP) could you not get sellers to register it with LR by ‘Adverse Possession’. Ie squatters rights.

I’ve attached a link to the government guidance document below:

Practice guide 5: adverse possession of (1) unregistered land and (2) registered land where a right to be registered was acquired before 13 October 2003

www.gov.uk

1. Introduction​

Where land is unregistered a squatter can acquire title by their adverse possession over a period of time. This is through a combination of the positive effect of the adverse possession giving them title and the negative effect of the Limitation Act 1980 which extinguishes the documentary or paper title (section 17 of the Limitation Act 1980).

Under the law as it was prior to the coming into effect of the Land Registration Act 2002 on 13 October 2003, the provisions of the Limitation Act 1980 applied in the same manner to registered land as unregistered land except that the estate of the registered proprietor, instead of being extinguished at the end of the appropriate limitation period, was deemed by section 75(1) of the Land Registration Act 1925 to be held on trust for the squatter. This gave the squatter the right to apply for registration in place of the existing registered proprietor: section 75(2) of the Land Registration Act 1925; Central London Commercial Estates Ltd v Kato Kagaku Co Ltd [1998] 4 All ER 948, 958-959. This form of trust was abolished under the Land Registration Act 2002 - there is no equivalent to section 75(1) of the Land Registration Act 1925 in the Land Registration Act 2002 - but Schedule 12, paragraph 18(1) of the Land Registration Act 2002 provides that a squatter who is already a beneficiary under such a trust has a right to be registered as proprietor. So, these transitional provisions in Schedule 12, paragraph 18 of the Land Registration Act 2002 can only operate where the land was registered as at 13 October 2003 and there had been adverse possession for the appropriate limitation period by that date.

This guide covers both the adverse possession of unregistered land and the transitional provisions in Schedule 12, paragraph 18 of the Land Registration Act 2002.

Note that an application for registration under Schedule 12, paragraph 18 of the Land Registration Act 2002 is not affected by the new regime in respect of registered land detailed in practice guide 4: adverse possession of registered land. However, a squatter who is able to apply under Schedule 12, paragraph 18 of the Land Registration Act 2002 may also be able to apply under the new regime. Where both applications are made, we will contact you to discuss the approach we will take to the applications. Our general aim would be to process any dispute arising out of the applications at the same time. When contacting you, we will also ask for confirmation as to which application should be treated as the first.

The title plans of all registered titles show only the general position of the boundaries unless they are shown as having been determined as exact boundaries pursuant to section 60 of the Land Registration Act 2002. This means that it is possible for an area of land to be within a registered title even though it falls outside the red edging on the title plan. Conversely, it is possible for an area of land not to be included within the registered title, even though it is within the red edging on the title plan. In other words, it is not possible for HM Land Registry to define the precise position of the boundary in question.

If the squatter has documentary title to the land and what is really required is an alteration to the squatter’s and/or the squatter’s neighbour’s title plan to show the general boundary more accurately, an application based on adverse possession is not appropriate. In these circumstances the squatter should consider an application to alter either:

• their title plan
• their and their neighbour’s title plan
• their neighbour’s title plan

to show the boundaries more accurately.

Such an application would need to be made in form AP1 identifying the title(s) to be altered. The applicant would need to make clear the nature of the alteration sought and the basis for the claim. A fee would be payable assessed under the current Land Registration Fee Order.

The determined boundary procedure could also be considered.

2. Adverse possession: the essentials​

You must show that:

• the squatter has factual possession of the land
• the squatter has the necessary intention to possess the land
• the squatter’s possession is without the owner’s consent
• all of the above have been true of the squatter and any predecessors through whom the squatter claims for at least 12 years prior to the date of the application (see The limitation period) ….continues….

 

[thejuggler]

According to NR, they own it but they told the seller to try find deeds/proof that previous owner purchased the land. That made me think that although they claim they own it and probably do, why didn’t they justshut the debate down by producing the deeds proving NR own it.

As it is almost 35 years since compulsory registration was introduced any sale would be registered. If it is still unregistered it hasn't been sold in the last 35 years. Getting NR to produce deeds is probably a task easier said than done.

 

[GARYF123]

As it is almost 35 years since compulsory registration was introduced any sale would be registered. If it is still unregistered it hasn't been sold in the last 35 years. Getting NR to produce deeds is probably a task easier said than done.

NR have just sent me the original deeds that do show they are the owners of the unregistered land

 

[themiller]

Even if NR can produce title to the land, you may still be able to get adverse possession. If you aren’t that bothered, another option is to get it on a long lease from NR. The clincher for success with the adverse possession route is having not been told by NR to vacate the land in the last years. If you have, the 12 year clock is reset to zero.
CAUTION. This is my recollection of the situation with my last house where I did manage to get adverse possession against the NR deed which had been drawn up before the railway was built. The biggest hurdle was the land registry who said that they wanted to give me title absolute but in the end states that the best title in such cases is adverse possession against. It took many months to get title to the land which would have been a deal breaker if conducted during a sale.

 

[Tetchytyke]

You need to get legal advice from a solicitor or conveyancer. And I mean a proper solicitor or conveyancer, not one of the big factory firms that are so often recommended by the estate agents and mortgage lenders.

It is perfectly possible to gain adverse possession of land even if Network Rail can demonstrate original ownership. However it does take the help of a solicitor who knows what they are doing. You having contacted Network Rail may not have assisted you here; hindsight is always 20/20, but you would have been better placed to seek legal advice before contacting them.

If you want the house then paying for the advice is a worthwhile investment. If you don't think paying for the advice is worth it then maybe walking away from the deal is your better option.

 

[themiller]

Further to my post #12, a Land Agent may be able to give helpful advice if they’ve had dealings with NR or its predecessors as not all solicitors have the required knowledge. It’s a minefield and it only takes one wrong step to wipe out all progress.

 

[Annetts key]

Also keep in mind that it would have originally been owned or leased by BR or the previous / preceding railway company. As such, the records held by Network Rail may be incomplete or inaccurate.

Network Rail themselves have built infrastructure on land that as it turned out, they did not own (ownership having changed when BR sold some of it), so they do make mistakes.

As others have said, it was a mistake to contact Network Rail. Now they are aware of the situation and also by contacting them, you have made it more difficult legally for yourself.

 

[infobleep]

Also keep in mind that it would have originally been owned or leased by BR or the previous / preceding railway company. As such, the records held by Network Rail may be incomplete or inaccurate.

Network Rail themselves have built infrastructure on land that as it turned out, they did not own (ownership having changed when BR sold some of it), so they do make mistakes.

That is what can happen when the archiving of historical records isn't perfect. I've come across this elsewhere.