Emyr Pierce

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What are the implications of buying a house, with a garden of unknown ownership?

I am interested in buying a house that has a garden attached.  The current owner has been using the garden but nobody knows who actually owns it.  The Estate Agent says a solicitor has been unable to trace the owner.  What are the implications of buying the house and, if the garden is unregistered land, could we register ownership of it?

On the basis that the title of the house is of no issue the problem will be a lack of title deeds to the unregistered garden land. On completion of the purchase you will be looking to register your title to the house and garden but unless the sellers’ solicitors can find the title deeds to the garden your sellers will not be able to prove that they are the rightful owners of the garden.

The only solution is for the sellers to claim that they and their predecessors in title have enjoyed uninterrupted use of the garden for, ideally, more than 15 years. If the garden is also enclosed within the boundaries of the house then this will also help and will suggest that it has been enjoyed as part of the house and not part of any adjoining owner’s land.

Proof of the sellers’ ownership or uninterrupted long use of the garden can only be provided by way of Statutory Declaration evidence from the sellers and, ideally, their predecessors in title.  These Declarations will identify the extent of the land concerned and will confirm that a long period of uninterrupted use of the land has been enjoyed by both.

Following completion, an application is made to the Land Registry for a Possessory Title. The Land Registry cannot grant an Absolute Title for the risk of the rightful owners proving to the Land Registry that they are the rightful owners.

If no-one comes forward claiming a better title than you to the land, then this Possessory Title can be upgraded to an Absolute Title at a later date.

* Emyr Pierce is Managing Director of Emyr Pierce Solicitors in Rhiwbina, Cardiff, Western Mail Conveyancer of the Year, specialising in Domestic and Commercial Property. Contact www.emyrpierce.co.uk or email law@emyrpierce.co.uk

Will building society look after property deeds?

I am about to complete on buying my first home. Will I receive the Deeds to the house and, if so, should I give them to my Building Society for safe keeping?

Lenders have for some time now adopted a policy of “dematerialisation”. This means they are happy to receive written confirmation that your title to the property is registered at HM Land Registry along with their legal charge by way of security for their mortgage monies.

Accordingly, you will find that if you do send your Deeds to the Building Society they will simply return them to you for your own safe keeping. The increased cost of storage has resulted in your Lender looking to you to retain all associated documentation and they simply rely on the registration process to access the information electronically at any time through their direct links with HM Land Registry.

This, however, can cause problems in that when you instruct your solicitor to sell your property some important documents may not be available. The Lenders don’t have them and the likelihood is that, while you may have received them at some time, you may have forgotten where you put them.

In the absence of these documents your solicitor will have to request official copies from the Land Registry at a cost of £8 to £10 each. You are strongly advised to either lodge your documents in safe custody with your solicitor, some of whom will not charge for the facility, or keep these documents safe, recording precisely where you have put them.

How do I remove name from Land Registry?

I bought a property as Joint Tenants with my father 12 years ago but sadly he died at the beginning of this year. How do I now get his name removed from the Land Registry?

This is very straightforward indeed. As you owned the property jointly as Joint Tenants with your father then the legal title to the property will have already automatically passed into your sole name.

This is the effect of owning jointly as Joint Tenants rather than as Tenants in Common where your respective shares in the property would have remained with your respective Estates. Accordingly, following your father’s death you are now the surviving Joint Tenant and the property is entirely yours.

If the title to the property is registered then all you need do is simply submit a copy of your late father’s Death Certificate to the Land Registry and the Land Registry will remove your father’s name from the Register leaving the property registered in your sole name. They will send you a copy of the updated register in your sole name.

Can I buy derelict land?

I would like to buy a strip of derelict land attached to the bottom of our garden. It was once part of the garden of a Rectory which has been empty for more than two decades. The land has not been used in all of that time and has no other access. How shall I go about trying to buy it?

Your solicitor will need to make enquiries of the Church, or Church Commissioners to establish the exact ownership of the land. Searches of the Land Registry are unlikely to be of help as the property appears to have been derelict for two decades and has presumably remained in the same ownership for many years.

A Land Registry Index Map Search will confirm whether or not the Title is registered. On the basis that it remains unregistered due to the fact that it has not changed hands for more than 40 years initial enquiries should be directed to the Church in Wales or, failing that, the National Archive.

The Church may well agree to sell but this could take some time and the sale is also likely to be subject to restrictions or covenants preventing you from developing the land and using it only as a garden ancillary to a private dwelling house or alternatively it could be the subject of Overage provisions whereby any subsequent sale with the benefit of planning permission for development will result in additional payments having to be made to the Church.

Should I change house deeds post-marriage?

My partner and I bought a home together two years ago. We got married six weeks ago and I am wondering whether I need to change my name on the house deeds etc. What documents will I need to change.

No, there is no need for you to make any changes unless you particularly want to. The title to the property will no doubt be registered at the Land Registry and all you need to do in the event of a future re-sale is to produce a certified copy of your marriage certificate showing the change in the name of the female spouse from her maiden name by way of proof that the parties are one and the same as those registered on the title.

You can, of course, forward a certified copy of your marriage certificate to the Land Registry, but this will need to be accompanied by a formal application form with which you are not familiar and which you may need to pay a Solicitor to complete on your behalf. Quite frankly, this is a total waste of money and is not essential.

What may be more important, since your marriage, is to review the manner in which you own the property. Had you bought the property as partners, the property may be registered in your joint names as Tenants in Common rather than Joint Tenants in which case you will now need to make Wills should you wish to ensure that the property will definitely pass automatically to the surviving spouse. Indeed, a Will, now that you are married, is something you should consider in any event.

Rear access lane used as a dumping ground

I live in a terraced row of Victorian houses at the back of which is a lane into which we all have doors leading from our back gardens. The lane is being used as a dumping ground. How do I find out who the lane belongs to? The Local Authority says the lane is not their responsibility.

The majority of those lanes are maintained by the Local Authority as part of the adopted highway. However, there are certain instances where these lanes remain private or indeed the ownership of which is unknown.

As with any piece of land in which you are anxious to establish ownership the first step is to make an Index Map Search of the Land Registry. This requires the submission of a plan identifying the lane. The result of this search will clarify whether the title to the land is registered or unregistered. If it is registered title then finding the identity of its owner is simple – obtain an Office Copy of that title, which will specify the name of the proprietor.

If the search reveals the property is unregistered then the problem is very much greater. You could inspect your Title Deeds in order to establish whether yours and the adjoining properties were originally part of an Estate as it is quite probable that the Estate remains entitled to the lane with each property having been sold off with, probably, rights of access from the rear gardens over the same.

If the lane is overgrown then those backing onto the lane should consider the possibility that they could be called upon to contribute towards its maintenance and repair.

At a loss at lost Title Deeds

We have lost the Title Deeds to our house. Where would we get duplicates from and how much would this cost?

The loss of Title Deeds is not as much of a problem these days as it used to be. This will, however, depend entirely on whether or not the title to your property is registered.

For example, in the Cardiff area all dealings involving properties since 1974 would have resulted in the need for compulsory registration of that property and if your property has changed ownership since 1974 then the title to it will now be registered.

The appropriate registration number can easily be obtained from the Land Registry by carrying out a search of the Property Index. This is done by inputting the postcode of the property and then identifying the appropriate title. You can then request office copies of that particular title number electronically at a cost of between £10 and £15 depending on whether or not you have an account with the Land Registry.

All property lawyers have accounts with the Land Registry either direct or through their Property Service Providers, and office copy entries can often be obtained at a reduced cost as a result of these arrangements, whereas members of the general public would pay slightly more for this service if requesting copies direct themselves.

The electronic copy of the Register is a snapshot of that Register at the date and time (to the second) that it is supplied. This facility enables solicitors to make up to date searches of the Registers immediately prior to purchases being completed to ensure that there are no last minute entries on the Register which would prejudice a would-be purchaser.

If the property is unregistered then the problem is far greater. This would require a reconstitution of the title which in turn would require Statutory Declarations by way of evidence from the owners and possibly predecessors in title detailing their length of ownership etc and also detailing how the documents had been mislaid.

In such cases the Land Registry would normally only provide a “Possessory Title” unless ownership can be proved beyond any reasonable doubt. If your title is unregistered and you have mislaid the Title Deeds to your property then you must contact a solicitor immediately as this is extremely urgent.

Land Registry will show who owns property

My parents made tax efficient Wills five years ago involving the Severance of their Joint Tenancy. Two years ago they moved to South Wales and my father has since died. How can I find out whether they own their home as Joint Tenants or Tenants in Common.

Critically, if your parents owned their previous property as Tenants in Common following the Severance of their Joint Tenancy at the time of making their Wills, it is of course essential that they also own the South Wales property as Tenants in Common.

Having only recently moved, it is very easy to find out how they own the current property by inspecting the registered titles of the property by obtaining official copies of the Register from the Land Registry.

If your parents own the property as Joint Tenants then there will be no Restriction entered on the Register preventing the disposition of the property by a sole survivor of the two of them.

If the property is owned as Tenants in Common there will be a Restriction entered on the Register preventing the disposition by a sole proprietor. In other words, the surviving spouse alone is unable to sell the property as a buyer will need to obtain the receipt of two Trustees for any purchase monies.

This means that your late father’s Executor will step into your late father’s shoes and sell the property along with your mother in the event of any future sale, or if your mother chooses to continue to live at the property for some years your late father’s share will pass to his Trustees on trust for the residuary beneficiaries, usually the children.

Who owns empty house I want to buy?

I have seen a house I would really like to buy but it has been empty for years and no-one seems to know who owns it. How do I find out who owns it?

The two main sources of information are the Land Registry and the Local Authority. The Land Registry will only be able to advise you of the Registered Proprietor of the title to the property provided, of course, this property has been registered in the first place.

This will only have taken place if there has been a dealing with the title to the property since the date on which the area became an area of compulsory registration under the Land Registration Act. For example, in the case of Cardiff, this was 1974.

If there has been no dealing with the property since before that date then the title to the property will remain unregistered and there will be no “Register” from which you can identify the current owner.

The other alternative is the Local Authority. The property should be on the Local Authority’s Rating List and someone should be responsible for the payment of rates. If rates are not being paid then someone may well have applied for an exemption. I believe councils do hold a register of properties the ownership of which is genuinely unknown and it might be well worth approaching them.

Finally, try the neighbours – a substantial amount of information can often be gleaned from people living next door.

I can’t find the deeds to my house

I bought a house about 10 years ago and I have been having a bit of a clear out of all my documents and I cannot find any deeds to the house. In fact I don’t ever remember seeing any?

The Title to your property is likely to be registered at HM Land Registry. The Registry no longer issue formal documents as the information is kept on an electronic register with each property having its own Title Number.

Following completion, therefore, owners are now issued with a Title Information Document – a snap shot of the electronic register at the precise time on which the electronic copy is printed. This is effectively the main Title Document. If there are mortgages registered against the Title, or documents affecting the Title which contain covenants, or restrictions, then copies of these documents are often retained at the Land Registry and their existence mentioned on the register.

If you have a mortgage on the property the lenders only now retain the Title Information Document and the original Mortgage Document leaving you to retain possession of all pre-registration Deeds and Documents and other guarantees and documents relating to the property. Your solicitor will have returned the Title Information Document and Mortgage Deed to the lender and may well have retained the balance of these other documents, either on file, or in safe custody, at their offices.

Alternatively, the solicitors will have sent the balance of these documents to you to keep, and it is imperative you know where these are as the guarantees, planning permissions etc will need to be handed over in the event of resale.