Part of my house is built on unregistered land - help

Hi everyone, I bought my house 6 yrs ago and I'm in the process of trying to sell it right now. Our purchasers solicitors have identified that an area of our driveway is built on a parcel of unregistered land.

This was never pointed out to me when I bought my house 6 yrs ago which I'm really peeved off about (being polite) and I'm not sure what options I have.

My solicitor has discussed adverse possession and we can confirm 21 years continued use by me and the previous owner. the other option is to sell the property as is and provide title indemnity insurance and statutory declarations to the purchaser to enable the, to apply for adverse possession. The trouble with this option is that the title indemnity insurance become null and void once you make an application for adverse possession. Any thoughts would be appreciated.
20:51 Thu 09th Feb 2012
 
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There are two ways of dealing with this that I know of and I think you may be confused between them.

If you are claiming a right to the unregistered land itself, the process is by 'claiming adverse possession'. The period of time is a minimum of 12 years and the period of time is additive between consecutive occupiers of the land - so you should be able to utilise the period of time of the previous owner to make up the minimum of 12 years.

The fundamentals of adverse possession are that you have to show you have factual possession of the land (often done by fencing it), that you have the necessary intention to possess the land, that you are possessing it without the owner’s consent, and you have being doing so for at least 12 years.

Based on what you say, it sounds like that you could claim this and the process requires evidence using a Statement of Truth (ST). You would also need an ST from the previous owner. The LR assesses your claim based on the evidence. It takes some time, so might slow your house sale.

If you are claiming a right of access across the parcel of land that forms part of your driveway you need an easement. One of the ways to achieve this is an easement by prescription and the minimum period of time is 20 years continuous use. Periods are additive so you may be able to use the time of the previous owner. There are various requirements to satisfy, that you mustn’t have been using force, you have been doing it without permission, and without secrecy. From what you say, you wouldn’t have a problem demonstrating adequate proof. You make a claim to the LR with an ST about your use of the land as a driveway on foot or by motor vehicle etc. You would also need to provide a similar ST from the previous owner in order to make up the necessary period of 20 years. Because you say the driveway is known to be unregistered, the LR cannot serve notice on any owner that you are claiming the easement (unless you do the donkey work and find evidence of an owner with a deed for the land – and there is probably no such owner]. For that reason LR will not register your right to access over the land unconditionally. What they do is make an entry in your land title as follows: “The registered proprietor claims that the land has the benefit of a right over the area of land shown as [your detail on the plan]. The right claimed is not included in this registration. The claim is supported by [details of the statement of truth].”

It is in this situation that your purchasers may require an indemnity policy, in case of the unlikely event that an owner with a deed shows up later. I think this is unlikely because the registration of the claim at LR is pretty watertight, as if an owner showed up it would merely allow the LR to complete the easement legally.

Either you are misunderstanding what your solicitor has told you or your solicitor doesn’t understand it properly. And finally. do go back to the solicitor who helped you buy this property and ensure that he picks up the tab for getting you into this monumental legal foul-up. There is no excuse.
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Buildersmate, thank you for your detailed and full reply - much appreciated.

The previous owners of our property built the house themselves (self-build). They bought the land, built the house and then when they were laying the driveway they built straight over the unregistered land. They knew it was unregistered at the time so took possession by buildung their driveway over their land and the unregistered land. Some 14 years later they sold the property to us and our solicitor never mentioned anything about this unregistered land. I'm thinking of sueing his firm for this error as I'm sure he should have spotted this and brought it to our attention!

Our solicitor has approached the previous owners and they have supplied their statements of truth confirming they knew it was unregistered and took possession by building their driveway over it and planding hedges and trees etc around its flank. It has been this way now for over 23 years and at no point during these 23 years has anyone claimed or challenged it. So hopefully the adverse possession application will be successful.

I guess the problem is that our purchaser simply needs to be comfirtable that part of his driveway is built on someone elses land! The indemnity policy that has been created is designed to protect the purchaser and anyone our purchaser sells to in the future. I guess if this unregistered land has been unchallenged for 23 years its likely to remain unchallenged for many years to come and the indemnity policy is there to protect them if there was a challenge.

The reason we are not claimining adverse possession right now is simply becuase our purchasers have expressed they want to complete on the purchase by the end of Feb 2012 and therefore my solicitor is offering the indemnity and statements of truth from us and the previous owner so that our purchasers have most of what they need to claim adverse possession themselves now or in years to come.
OK - I have understood what you said.

As always, you are paying for a solicitor so it is his job to advise you. It seems the adverse possession would be successful because the LR will satisfy itself that the land is unregistered, so once it has then satisfied itself that your statements satisfy the requirements for adverse possession, the land becomes yours and no later appearance of a bod with a deed claiming ownership makes any difference - LR rules OK.

But all of this takes time - and I guess the purpose of an indemnity would cover the gap between when your purchaser completes with you and the LR confirms the driveway land as part of the main plot.

I can't comment on the bind you seem to be in, where the insurance becomes null-and-void as soon as you declare your hand to the LR for adverse possession.

A potential solution is to go down the claim for an easement over the land (pending the full title claim) - that should keep the purchasers happy (they won't get caught not being able to access the house by vehicle) - the LR won't need as much time to verify an easement claim.
I can only add anecdote to BM's excellent answers. I was in a similar position with my present house. It's beside a lane. The lane was moved to make room for my house to be built over 40 years ago. The Title Deeds were never amended. I bought the house (knowingly) from the original owner with a Land Registry plan showing the lane running through my sitting room!!
No adverse possession needed in this case, just having the LR amend the plan.
I just wondered if this is a route for you?
Not 100% sure on this but your solicitor should be!

My understanding, I remember something on the news a few years back, is that if you have any form of construction building, fence, etc on unregistered land after a period of either 7 or 12 years (can not remember which) the property becomes yours.

Exceptions are if the construction is hidden from sight. There was a case where someome built a fantastic building and surrounded it with, a lot, hay. After the period allowed they took removed the hay but it had to be demolished.

Surely, both solicitors should know the facts relating to this.

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