As it is likely that due to the recent lockdown restrictions, more of us have spent time in our gardens or indeed, had the opportunity to re-paint the perimeter fence, it might be that there has been increased thought given to the garden boundary extent which encloses our properties.
There has perhaps been scope for some of us to have taken the time to reflect on the divisional boundaries such as walls/fences and in particular, at the point of purchasing a property it is an important factor to consider when ascertaining the full extent of the property you are committing to purchasing.
A solicitor will compile a report on title as part of the conveyancing process and one element of this will be the reviewing by the client of a deed plan which shows the extent of the property being purchased. The solicitor will be checking that what is shown on the deed plan as being the legal extent aligns with what the client is anticipating purchasing.
But what if for example, the fence or other boundary feature is placed in a different position than what is being shown on the plan? If it appears that the legal extent (shown on the deed plan) differs from the extent on the ground marked by say a fence-post (known as the occupied extent) then there are various reasons as to why the discrepancy could have arisen.
Commonly, a fence has been put in the wrong position relative to the measurements plotted out on the development plan when it has been erected in the first place by the builder. This may result in one party occupying a greater area than that which they legally own and it may only come to light at the time of selling when the new purchaser’s solicitor spots that there is a discrepancy.
One remedy is for what is known as ‘corrective conveyancing’ to be carried out –
First it is necessary to try to ascertain who the legal owner of the section of ground in question is through a review of the title deeds. A document providing for the legal transfer of title to the ground could then be prepared and registered but this can lead to problems as the true owner (if such an owner can be tracked down) may hold the party seeking to acquire the ground “to ransom” and request payment of a sum of money in exchange for the legal grant of title.
Corrective conveyancing is often not the best solution if time is of the essence and a transaction needs to settle quickly.
Therefore, an alternative solution is to put in place a title indemnity policy. These can be obtained from various providers and as it is a form of insurance policy, a premium is paid incorporating insurance premium tax.
It is important not to disclose the existence of the policy to anyone except professional advisers as to do so risks the policy being rendered void.
If it does appear that there may be a dispute set to arise, the policy can be relied on. It is important to check the terms of such a policy and even if you are unsure whether you want to or don’t ultimately need to make a claim, you will still need to notify the insurer within a set time frame of becoming aware of anything which may result in a claim under the policy.
One point to bear in mind is that if proceeding with the corrective conveyancing route and asking an adjacent owner to grant title, this is essentially publicising that there is an issue so potentially negates the ability to put in place title indemnity insurance, should an unreasonable “ransom” be requested that is not able to be provided.
More advice can be provided by a member of the Blackadders property team.
Lucy Smith, Associate
The opinions expressed in this blog are of the author only and do not necessarily represent the opinions of Blackadders LLP.
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