Buying part of a neighbour's garden - the process

[jack]

Yay, first topic in this subforum!

We had an amazing stroke of luck a while ago.  Our neighbour's house came on the market at the perfect time during our build.  My wife's family bought it as a family project, largely to allow us to buy the rear part of the garden that's adjacent our house (which is set back from the road relative to next door).  

While they were extending and tarting up next door, we fenced off the relevant part of the garden.

They've nearly finished and the renovated house will be put on the market in a few weeks.  We now need to update the land registry for both properties.  We've downloaded the relevant forms and they seem simple enough.  Still, I have a few questions:

1. Is there anything in particular I need to consider when defining the boundaries?  For example, if we wanted to own the fences, I assume we just show them as being clearly and wholly on our property.  Is that just a matter of making sure the line on the plan is clearly in that position?  Should we mention distances (eg, "50 mm from the face of the fence")?

2.  When doing the drawings, I know that there isn't a great need for perfect accuracy as long as the boundaries are clear when read in the context of what's on the ground.  I assume that means we can do the drawings ourselves.  Should we show measurements on the plan (eg, showing boundary and cornerdistances from permanent structures such as houses and hard landscaping features)?

3.  I'm not sure how enthusiastic my inlaws will be about the idea, but we're considering whether to ask them to include some covenants.  The main one would be no biomass burners.  Others might be things like not building structures within a certain distance of their rear boundary (would overshadow us), not attaching things to "our" fence without permission, that sort of thing.  First, do you think covenants like that are likely to have much of an impact on people's decision to buy a property?  Second, if not, what other covenants do you think might be useful to consider?

In case it matters, this is South East England, and it's almost guaranteed that the house will be bought by a DFL (down from Londoner) moving here with young kids for the schools and their first back garden.  The house has been renovated to a fairly high standard and the garden is still pretty big despite us snipping off its bottom.

Many thanks in advance for any thoughts, advice or info.  

[PeterW]

Normal method for identifying who owns the boundary is by the use of  a "T" on the fence.

 

In the picture above, the boundary to the right of Plot A owns the fence, in the Plot B they own the bottom fence.

Does that help...???

[Ferdinand]

The best place to start imo is with a conversation with the Land Registry helpline. They are always helpful to me.

You could also visit their office. My local one has free parking spaces they tend to keep quiet about.

Rather than bother with "50mm from the face of the fence" (someone will move the fence at some time :-o ), you could go for a measured boundary done via GPS, which will then say exactly where it is. There will be no consent problems if you own both sides.

I take it you are fully in touch with building plot (or not) potential.

Large walls are rather nice compared to some fences, but cost about 5x as much as a closeboard fence - but if you are there forever...

Ferdinand

Edited July 7, 2016 by Ferdinand

[jack]

14 minutes ago, PeterW said:

Normal method for identifying who owns the boundary is by the use of  a "T" on the fence.

 

In the picture above, the boundary to the right of Plot A owns the fence, in the Plot B they own the bottom fence.

Does that help...???

Very much so, thanks!

[jack]

11 minutes ago, Ferdinand said:

The best place to start imo is with a conversation with the Land Registry helpline. They are always helpful to me.

You could also visit their office. My local one has free parking spaces they tend to keep quiet about.

Rather than bother with "50mm from the face of the fence" (someone will move the fence at some time :-o ), you could go for a measured boundary done via GPS, which will then say exactly where it is. There will be no consent problems if you own both sides.

I take it you are fully in touch with building plot (or not) potential.

Large walls are rather nice compared to some fences, but cost about 5x as much as a closeboard fence - but if you are there forever...

Ferdinand

Ah, interesting.  My wife just finished telling me that you "can't speak to the land registry by phone"!  

Definitely no building plot potential.  This is solely about increasing the size and usability of our own plot.  Our original plot had a steep 2.5m step up just behind our house.  Although there's a reasonable garden at the top of that, you can hardly see any of it from downstairs, so you did feel a little like you were at the bottom of a ditch.  The bit we've acquired extends directly out to the side of the rear half of our house, in line with our kitchen and large sliding door.  So instead of a 4m wide flat area looking onto a hedge, we now have a 15m flat area with an additional raised section of garden added to what already had.

I'd love to have built a wall, but given the height we wanted and the length we needed the cost would have been prohibitive!  

Thanks again.

[Jeremy Harris]

18 minutes ago, Ferdinand said:

The best place to start imo is with a conversation with the Land Registry helpline. They are always helpful to me.

Ferdinand

Will that still be the case when they are privatised, I wonder?  Although I generally agree with privatising things that don't need to be overseen by government, I''m not convinced that things that should have government control, like building control and the Land Registry should be privately run.

[IanR]

My thoughts are that the Title and Plan that are held with at the Land Registry show "general" boundaries, rather than specific boundaries so can't be relied upon to legally define the boundary position.

They also only ask for a red line on an OS, so not sure that any additional lines that you put on (a new fence line for instance) would be accepted as anything more than indicative.

To define a more specific boundary and declare who is responsible for maintaining a particular fence (Using T Marks as above) I believe would require a Title Deed to be generated that can be included with the TR1 form and hopefully be filed by the Land Registry along with the Title and Plan.

With regards restrictive covenants, they are likely to reduce the value. You're inlaws may, not unreasonably, want to be compensated for this.

No need to include anything regarding attaching to "your" fence, as long as it is clear that you own it and it is fully within your plot. Your are already protected in law. ie. a neighbour could not do anything to your fence without permission. To do so would technically be criminal damage.

Edited July 7, 2016 by IanR

[ProDave]

With regards to covenants putting people off, I suspect the answer is no.

Whenever I have been looking for houses before I always want to know what, if any covenants apply. Things like "no caravans" would put me off buying it for instance. But what I found without exception, was it was almost impossible to find out anything about existing covenants befre you make an offer. The agents just said "your solicitor will sort all that out".  My point is I wanted to know before I wasted everybodies time and them pulled out when I found a covenant that is too restrictive for me. And most owners you speak to have not got a clue what, if any covenants apply.

So I suspect it will not even enter the mind of pospective buyers, though I must say I would not be happy if my neighbour tried to tell me I can't have my WBS. 

[Ferdinand]

 

11 minutes ago, IanR said:

My thoughts are that the Title and Plan that are held with at the Land Registry show "general" boundaries, rather than specific boundaries so can't be relied upon to legally define the boundary position.

The also only ask for a red line on an OS, so not sure that any additional lines that you put on (a new fence line for instance) would be accepted as anything more than indicative.

To define a more specific boundary and declare who is responsible for maintaining a particular fence (Using T Marks as above) I believe would require a Title Deed to be generated that can be included with the TR1 form and hopefully be filed by the Land Registry along with the Title and Plan.

With regards restrictive covenants, they are likely to reduce the value. You're inlaws may, not unreasonably, want to be compensated for this.

No need to include anything regarding attaching to "your" fence, as long as it is clear that you own it and it is fully within your plot. Your are already protected in law. ie. a neighbour could not do anything to your fence without permission. To do so would technically be criminal damage.

The thing you may want is called a "determined boundary" that you can register.

A normal boundary relies on "boundary features" to decide the line on the ground.

Ferdinand

Edited July 7, 2016 by Ferdinand

[jack]

2 minutes ago, IanR said:

My thoughts are that the Title and Plan that are held with at the Land Registry show "general" boundaries, rather than specific boundaries so can't be relied upon to legally define the boundary position.

The also only ask for a red line on an OS, so not sure that any additional lines that you put on (a new fence line for instance) would be accepted as anything more than indicative.

To define a more specific boundary and declare who is responsible for maintaining a particular fence (Using T Marks as above) I believe would require a Title Deed to be generated that can be included with the TR1 form and hopefully be filed by the Land Registry along with the Title and Plan.

With regards restrictive covenants, they are likely to reduce the value. You're inlaws may, not unreasonably, want to be compensated for this.

No need to include anything regarding attaching to "your" fence, as long as it is clear that you own it and it is fully within your plot. Your are already protected in law. ie. a neighbour could not do anything to your fence without permission. To do so would technically be criminal damage.

I get the "general" nature of land registry documents.  I guess that's why I'm asking about how best to ensure that we get what we're after!  Having done a bit of reading, it appears that measurements are made from structures that won't decay and are likely to still be there in at least 10 years.  A house is a good example.  

Re: covenants, my inlaws have already been hugely helpful and generous in relation to both next door and our own build, so I don't think it would be about compensation. Their main concern would be whether a particular covenant would be likely to affect the ease with which the house can be sold.  To be honest, my opinion - rightly - isn't going to factor too much in this question, as it's their house and they have every right to do what they can to get the best price and quickest sale.  Can't hurt to ask though!

[Ferdinand]

This LR blog post (and the 686 comments) may be useful:

http://blog.landregistry.gov.uk/boundary-questions-answered/

as may this video (and the other five parts)

I think you should put an interesting covenant on it, just for the LOLs.

"No peacocks, parrots, penguins or ptarmigans may be kept on this land".

Ferdinand

[Ferdinand]

Found it.

Determined boundary - Practice Guide 40.

https://www.gov.uk/government/publications/boundary-agreements-and-determined-boundaries/practice-guide-40-land-registry-plans-supplement-4-boundary-agreements-and-determined-boundaries

Land Reg. eg It looks to be where Charles and Di lived after the split. Apparently GPS is not used.

Edited July 7, 2016 by Ferdinand

[jack]

Thanks Ferdinand.  It looks like we need a combination of that and conveyancing.  

[TerryE]

Jack, as you probably recall, Jan and I decided to split our garden of our farmhouse to do our new build on.  After talking you our solicitor about the pros and cons in our case it made a lot of sense to split our plot into the new build and the existing farmhouse pretty much as a first stage.  (We were taking out a mortgage on our Farmhouse to help fund the build, but we wanted to keep the new build out of the mortgage equation.) 

In the event doing this was a roller coaster that took over six months, mainly because we've own our farmhouse for 33 years and it wasn't registered, so this was the first registration.   We discovered that when our neighbour sold her cottage 19 years ago, her solicitor drew the boundary in totally the wrong place and claimed a path that had belonged to our property since before WW1.  Of course we were never consulted so had no reasonable opportunity to object.  Our solicitor used the Deed of Rectification process to remedy this and this was rejected by the LRO as we hadn't provided adequate proof that the this was an error in the original registration of the neighbouring property and said that we had to do this by a TP1.  Our neighbour pissed us around just because.  I had a statement of truth from the then buyer that the fence was old and an established part of our property when she bought it, and I had a copy of the 1913 deeds which explicitly included the path in our property, but it was only with the threat of taking the guy to court with a claim of adverse possession, plus an official sweetener of £1,000 that he agreed to sign the TP1 and it all went through.  Anyway the only real relevance of all this to your case is that I spent a lot of time going through all of these LRO PGs and discussing their implications with my second solicitor from the practice who was very good.

So leaving this aside, the actual split of the plot into two was pretty straight forward.  It makes sense to use a solicitor to do this, and it is the solicitor is who has a named point of contact in the LRO.  Whoever within your family bought the property has a copy of the original title deed from the LRO, and if not your solicitor will request this.  In practice if your division is a straight line or even a dog leg then just getting your TA to resubmit your new proposed titles are essentially a clone of the original with a couple of measurements to define the new boundary corners.  The LRO won't vary the other boundaries with 3rd party properties anyway.

If you look at the LRO title plans they no longer record boundary ownership, so there's no point in using them on the plans.  If you want to record such facts on the title then these are restrictive convents which define that the property A owns the boundary fence, etc.  However, why bother?  If you have photographic evidence of you putting up the fence and receipts for the materiel then it is clearly your property.

You absolutely want to avoid the setting up of a determined boundary.  These only get created in the case of a boundary dispute and require a precision plan submitted by a chartered land surveyor.  The are expensive to set up and raise a red flag for future purchasers by implying that there has been a boundary dispute.

The normal rules for a boundary are that the the LRO title is only an approximation (and the LRO publishes tolerances).  The boundary on the ground so long as it is within these tolerances takes precedence, so you need to ensure that the physical boundary is clearly identified.  (E.g. concrete posts at the 3-way boundaries and concreted posts or spurs along a taughtline between.  Then take and keep a photographic record of their position (e.g.  with the front page of a newspaper or whatever.) 

Some other things to think about:

• If you yourself don't own the garden, then why not do the split and get your inlaws to  transfer into your name and your title using a TP1 before they put the restored property on the market. OK, it's an ask an may involve money, but this is a two way conversation.  This will remove the land from an potential negotiations with the prospective buyers during the sale.  The last thing that you want in two years time is someone saying to your FiL: OK I'll throw in an extra £nK if you include the extra garden. 
• If you have any development plans which might impact on the new neighbours then consider get at least an outline planning application and better a full application in and approved before putting the house up for sale.  Yes this might impact the value is the prospective buyer baulks at this during the sale, but this is surely a lot better than the DFL buying the house then putting the kibosh on any plans your have by mounting an strong objection,  

 

the new build on went through all of this crap doubly. 

[jack]

That's all hugely helpful Terry, thanks.

10 minutes ago, TerryE said:

...

• If you yourself don't own the garden, then why not do the split and get your inlaws to  transfer into your name and your title using a TP1 before they put the restored property on the market. OK, it's an ask an may involve money, but this is a two way conversation.  This will remove the land from an potential negotiations with the prospective buyers during the sale.  The last thing that you want in two years time is someone saying to your FiL: OK I'll throw in an extra £nK if you include the extra garden. 
• If you have any development plans which might impact on the new neighbours then consider get at least an outline planning application and better a full application in and approved before putting the house up for sale.  Yes this might impact the value is the prospective buyer baulks at this during the sale, but this is surely a lot better than the DFL buying the house then putting the kibosh on any plans your have by mounting an strong objection,  

We want the split formalised before it goes on the market, so no probs with any potential purchaser asking to buy.

Our own redevelopment is finished (we moved in before Christmas) and there's nothing else we might consider in the foreseeable future that would require planning permission. 

I was hoping to avoid using a solicitor, but given that there's a mortgage on the house we're grabbing the land from, it seems we may be required to have a solicitor handle things if we want them to go smoothly anyway.  We've just remembered that the husband of a good friend's wife is a chartered surveyor, so we're going to ask him for some input too.

Thanks again for all the help.

[Ferdinand]

Yes, clearly you should get the changes done first.

Doing simple transfer etc forms *is* fairly straightforward - we have been moving things around like a politician's fairy story over our recent sale, largely to do with ransom strips etc, and done some ourselves.

If doing it myself I have done the forms and gone and sat down at an appointment at the Land Registry, where they will give process advice etc - and they have sometimes been able to obtain documents etc on the spot from the computer. 

In your case I would put it in the hands of a solicitor or conveyancer, but do check that they don't make mistakes and chase through with the Land Registry to make sure it is all correctly filled in. Solicitors do sometimes make mistakes, and in these cases the LR may just put it aside to deal with later, and it could be on the side-pile for months. We had one problem when we trusted the process, and our solicitor had made a rare mistake which didn't come to light until it hit a deadline then was difficult to remedy.

Also, purchasers may themselves be nitpickers (most of us on Buildbub are just that), and their solicitors may be required to be that. And that can poleaxe a purchase.

And solicitors will have access to the LR online systems.

Be ready for extra costs from the Building Society etc :-) .

Ferdinand

 

Edited July 8, 2016 by Ferdinand

[DavidFrancis]

In my experience solicitors regularly make mistakes and quite often don't know what they're doing.  Conveyancing matters often seem to be dealt with by "para-legals" and secretaries.

I'd double-check everything.

[TerryE]

As I said above our neighbours solicitor got the boundary totally wrong -- 4 feet out on the wrong side of our path and registered their property without consulting us. No one noticed, and in fact their property was bought and sold four times without anyone noticing because it's absolutely obvious where it is. However, as far as the LRO were concerned the onus was on us to prove that they had made a mistake, which was a bit difficult since the seller was dead by the time; we didn't know who the solicitor was etc.

If a mistake has been made and accepted by the LRO, then I believe that they are liable for cost recovery, so guess what? Getting them to admit this is impossible.  Double check everything with your in-laws.

[Jeremy Harris]

Another vote for solicitors getting boundaries wrong and needing to double-check their work carefully.  My experience of agreeing to buy two plots was that both had large boundary errors.

In the first case we faffed about and spent money on boundary surveys, got the council involved (because a public footpath had been unlawfully moved to enlarge a garden) and ended up pulling out of the purchase after around 4 months or so and around £1k in costs to us because the errors were going to take at least two years to resolve (mainly because there could have been an adverse possession claim and because of legal action over the footpath move)

The second case was the plot we bought, that had a large boundary error that meant that the planning permission it was being sold with couldn't be implemented, as part of the house would be on a neighbours land.  That took just over a year and around another £1k of our money (plus three or four times that from the vendor) to resolve; we agreed to buy the plot and had our offer accepted in October 2011, we exchanged contracts in November 2012....................

[jack]

We'll be extra careful about boundaries and will certainly keep a close eye on the solicitors, but in this case the new boundary should be very easily defined.  

Also, both us and our inlaws have gone through searches etc for both properties as part of their respective purchases over the last few years, so I'm hopeful there shouldn't be much to go wrong.

[PeterW]

20 minutes ago, jack said:

We'll be extra careful about boundaries and will certainly keep a close eye on the solicitors, but in this case the new boundary should be very easily defined.

We're on our second set of solicitors and for something that should have been simple (no chain...) its taken 6 months ! The first delay was actually defining what was being sold, the second was about getting the ownership of the lane agreed and we now have a permissive right of way agreement to be signed too, along with a nice insurance policy "just in case..."

[Ferdinand]

Shall we have a thread for these stories?

When we sold out small manor house after 38 years we had:

1 - Our solicitors lost the deeds (in wrong file) durnig my father's probate processing, so we went all the way through the "possessory ttitle" process for several months before they suddenly found them again.

2 - The purchasers were using an online, call-centre type solicitor, who maintained that we didn't have a right to drive out of our drive over the grass verge. The issue was that the verge had been made wider when the lane was realigned when the M1 was built, and a slice was allegedly under some sort of title or restriction from the relevant government department since before 1970. Not much fun.

Ferdinand

 

[ProDave]

My solicitor picked up a possible "ransom strip" issue.

When my plot was last sold, the access road was private, and the plot came with a right of access over that private road. In the intervening time the road was surfaced and adopted as a public road.

My solicitors concern was that if the new public road was not built on exactly the same line as the old private road, say it was built a little bit further from the plot, then there could be a little strip of land between the plot boundary and the new route of the public road that we didn't own and had no right to pass over.

I concluded that in order for that to happen, the new road would have needed to be built entirely on "new ground" with no part of it on the course of the old private road. I thought that was very unlikely indeed so I took the risk. As it happens, when they dug up the road for the services, there under the new tarmac road we found the old concrete private road surface confirming the new public road was indeed exactly on top of the old private road. I had also checked by comparing the route on old and new OS maps and could see no difference in the line of the old road and the present road.

[jack]

Just reviving this thread with an update:

 

As I think I mentioned, we needed to get a solicitor involved due to the fact that a mortgage exists on the property next door.  We've had a surveyor draw up two new plans: one showing the new shape of our plot (including the bit we nabbed from next door) and another showing the new shape of next door's plot.  Both are edged in red.

 

The solicitor has just come back and said that we need to provide a red-edged diagram showing the bit that's being transferred, to accompany the TP1 form.  I called the surveyor to ask his advice and he seemed to think that the plan accompanying the TP1 was just a courtesy to the registry and didn't need to be overly formal (eg, me or the solicitor could just manually add the relevant lines and scan).  

 

The solicitor got a bit antsy when I passed this on (maybe she felt the surveyor was trying to tell her how to do her job?) but my only goal here is to get things under way as fast as possible given that a sale of the property next door is suddenly on the cards.  She did warn that if the Registry didn't like what we'd done they could reject the application and we'd have to resubmit and go to the back of the queue.

 

Any thoughts about who's right, or indeed any other advice?  I may ask the surveyor whether he can turn around the formal plan she wants, but I get the impression he's flat out at the moment.

[Oz07]

You just need the black and white plan at 1:200 a3 then you can draw lines on it and shade yourself. Surveyor doesn't need to do that for u