Garden is common land?!

[DaveNates]

Hi folks,

I have a doozy for you. We're halfway through purchasing a rural property. The few hundred-year-old building split up into several houses. We were surprised when the Land Registry searches came back showing what we believed to be the garden was not included on the plan.

We have since seen an agreement drawn up in 2008 which splits the 'common land' surrounding the houses to the various owners, with certain rights of way granted to the other owners. However, this is an agreement and refers to the land as 'common land' throughout.

The agreement states:

The legal estate in the land shown on the said plan (hereinafter referred to as "the Common Land" is presumed to be vested in the Public Trustee on the statutory trusts by virtue of paragraph 2 of Part V of Schedule I of the Law of Property Act 1925 and XXX and YYY are between them entitled as tenants in common to the whole of the beneficial interests under the said trusts
(5)
XXX and YYY are in agreement that for many years past the Common Land has been subject to various easements quasi-easements and rights for the purpose of avoiding any future dispute and have determined to regularise such easements quasi-easements and rights and for such purpose to enter into this Agreement
NOW IT IS HEREBY AGREED as follows:

It then goes on to divide up the land using the following language:

Such part of the Common Land as is not shown hatched green shall transferred or conveyed to Mr XXX

And so on. It also states:

Mr XXX will as and when the legal estate in the Common Land shall be vested in them partition the Common Land in such manner and Mr YYY will grant such easements as are set out in the Schedule hereto and until such time as the said legal estate is vested in them Mr XXX will use and enjoy the Common Land in the same manner as if the said legal estate had so been vested and the said partition had been effected and the said easements had been granted as legal easements.

The title for the property states:

The land has the benefit of the following rights granted by a Conveyance of the land in this title and other land dated 14 August 1924 made between
(1) Bob and others (2) Jim and (3) Mike
TOGETHER ALSO with full right and liberty for the said Jim and his heirs and assigns tenants servants and agents to pass and repass at all times and for all purposes over and along the footpath on said land and cottages hereby conveyed and shown on the said plan and thereon marked "right of way" and coloured yellow but subject to the liability of the said Jim his heirs and assigns from time to time to pay his due proportion of the expense of keeping in repair the said footpath AND TOGETHER with the benefit of but subject to all existing arrangements as to drains eaves spouts fall-pipes flow of water bearing on walls lateral and other supports reserving nevertheless unto Bob his heirs and assigns and his and their tenants servants and agents and the owners or occupiers of the hereditaments on the West side of the hereditaments firstly hereby conveyed and belonging to Mike in common with all other persons who have or may hereafter have the like right and liberty to pass and repass at all times and for all purposes over and along the footpath marked on the said plan on the Westernly side of the cottage hereby conveyed."

After reading for several hours, my head is spinning. My questions are:

Who actually owns the garden? Us (assuming we complete). The trustees (i.e the current owners of the houses)?

If the garden doesn't belong to the property (as one might expect), but there is a contract/agreement in place that attributes a certain part of the land to the owner of the house what are the potential consequences of treating it as your land/garden? Can you put up a shed? Put in pipework? etc. Will this ever change?

The garden/common ground seems to have been evenly divided since 1924 and the owners have respected the patches of land and the rights of way and had it enshrined in a legally binding agreement 15 years ago. Why does the land not now belong to the property?

Why does the Land Registry have no information on who owns the land? Could we apply to have the land included in the title/plan?

The language of the contract states "until such time as the said legal estate is vested in them". What does that mean? That at some point the land will belong to the owners of the property?

We thought we were buying a house in the countryside with a big garden. But if that's not the case and the garden is still technically common ground belonging to the trustees, I guess my primary concern is that we are buying a house and all three sides are surrounded by land that belongs to an unknown entity and we have limited ownership of it or what happens to it over the coming decades? How binding is the contract?

TL;DR Do we for all intents and purposes, own the land... or not? (access ways aside)

I appreciate this is a nuanced situation, but any advice would be appreciated. Our convancer seems truly clueless and we just want to understand what exactly it is we're hoping to purchase.

Thanks

[atticus]

Did you select your conveyancer on price?

[DaveNates]

atticus How did you guess? No, we selected them based on the advice of our mortgage broker... which is just as bad I guess!

[atticus]

Perhaps another member such as @dslippycan help. I am not sure that you have given all necessary information.

Did you ask the mortgage broker what benefit they get from this introduction?

[R0b]

Quite concerning your conveyancer, I am presuming they are not a solicitor is unable to advise you on this, because at one point or another they are going to need to prepare a report on title which will include a description of the property and the rights and restrictions associated with that i.e. they interpret the property title deeds and if they get it wrong, that might be a very expensive negligence claim you may have to bring.

Just my view of things never go with a conveyancer suggested by your mortgage advisor, they usually get a commission for doing that and don't always have your best interests at heart. I would always advocate engaging a conveyancing solicitor rather than someone who is not qualified because in situations like this, a qualified solicitor would usually be able to advise you properly. Sometimes a bit more expensive but buying a house is never cheap and that is one thing you shouldn't scrimp on, particularly as many law firms offer a no sale no fee (except for disbursements).

Anyway, rant over, I have limited knowledge on conveyancing and I would highly recommend you either get your conveyancer or their superior to explain this to you, or pay for some property qualified advice from a solicitor. However, here's my initial take based on the selected provisions you have made available.

- The "Common Land" was presumed to have vested in the "Public Trustee". The Public Trustee is a statutory corporation that will act in various roles such as acting as an executor of the estate or in this case, common land (think of them as a governmental office branch). It says Public Trustee is the trustee of the common land on behalf of XXX and YYY who are the beneficiaries.

- XXX will own the land that is not hatched green on the plan and YYY will own the remainder of the Common Land.

- Both XXX and YYY will, when the Common Land vests in them, grant each other certain easements and rights described in the schedule. Nothing you have provided suggests when or how the Common Land has vested in XXX and YYY so you would be wise to have that checked or confirmed though for this purpose let's assume it has vested in them.

- The Common Land is subject to certain rights under the conveyance dated 14 August 1924 between Bob, Jim and Mike which are described in that paragraph as what seems to be a right of way over a path(s) marked on the plan accordingly.

To your questions:

Who actually owns the garden? Us (assuming we complete). The trustees (i.e the current owners of the houses)?

As I mentioned above, XXX and YYY own the Common Land as shown on the plan. I have no idea what the garden is in relation to the Common Land owned by XXX and YYY. If the garden falls within the boundaries of the land divided between XXX and YYY according to the plan, then you are unlikely to own it unless you are purchasing the property and land from XXX or YYY or there is something else in the title deeds that says otherwise. If the garden doesn't fall within the boundaries of the Common Land then I don't know what these provisions you have provided, have to do with the garden you are referring to.

If the garden doesn't belong to the property (as one might expect), but there is a contract/agreement in place that attributes a certain part of the land to the owner of the house what are the potential consequences of treating it as your land/garden? Can you put up a shed? Put in pipework? etc. Will this ever change?

This is not an easy answer so I will say it depends on a number of factors. You will need to read the contractual agreement and decide what legal rights it grants e.g. a revokable licence, easement (non-possessory right), etc. What you can or can't do with the land will be subject to the rights and restrictions in the title deeds or contractual agreement or in some cases planning permission restrictions especially if the property is a listed building.

Why does the Land Registry have no information on who owns the land? Could we apply to have the land included in the title/plan?

It's likely that the property was previously unregistered which meant that everything about land ownership was physical documentation. Compulsory land registration only came about by law in 2002 upon certain conditions being met but there are probably lots of unregistered land out there still.

Your conveyancer, if they were doing their job properly should establish what is known as "root of title" which means your conveyancer should review the title deeds to trace the property and ownership back to seller of the property and that they have good title to it. They need to establish that the chain of ownership is not broken. So in other words, if there is no evidence that the title deeds show an unbroken chain of transfer of property to the seller from the original owner as recorded, red flags should be raised. Matters can get complicated when an owner has died because there would need to be proof that the estate had been dealt with. It sounds like this agreement has covered that but it's not clear and would need someone with the requisite expertise to confirm that.

he language of the contract states "until such time as the said legal estate is vested in them". What does that mean? That at some point the land will belong to the owners of the property?

See my points above on my interpretation. Vested is another way of saying the land has legally transferred. Because the agreement refers to a Public Trustee, it sounds like the land was held on trust for the benefit of XXX and YYY until some condition(s) are satisfied. Once those conditions have been fulfilled, the land will legally transfer to XXX and YYY. Whether the land has in fact transferred to XXX and YYY would need to be investigated by your conveyancer (see my point above on root of title).

If I am being honest, property in question seems very complicated and if there is any hint or smell of the seller not having good title to the property then I would consider walking away as you could be purchasing something you do not legally own and you will not get your money back. That could affect insurance, mortgage and other things. However, if you do proceed without having full knowledge and understanding of land ownership and the rights and restrictions you have, then that is a risk you have to take and accept.

I believe you can purchase certain insurances such as title insurance that protects against any defects in the title deeds or ownership but you would have to read those terms carefully as insurers will find any way to get out of paying if they can. It could protect you against ownership claims as well as other things such as rights and restrictions. For example, I have a lifetime policy cover for work done on a house that is believed to have been approved by building control and have planning permission but some documents are missing and nobody seems to have the approval. This policy will benefit any successors of the property also.

What insurance policies that need to be taken out should be determined and discussed with your conveyancer and I would consider asking the seller to cover these as a one time payment for yourself and future successors, a lump sum deducted from the sale price to cover the insurance policies or some other agreement that should be contractualised before signing/exchange of contracts.


Just my two cents and I would not suggest you rely on anything I said because as Atticus mentioned, we do not have the full picture of what's going on and that is what your conveyancer should be helping you with.

[DaveNates]

Thank you for your thorough response. A lot of it is going over my head so I will need some time to absorb! In answer to some of your comments:

- Both XXX and YYY will, when the Common Land vests in them, grant each other certain easements and rights described in the schedule. Nothing you have provided suggests when or how the Common Land has vested in XXX and YYY so you would be wise to have that checked or confirmed though for this purpose let's assume it has vested in them.

I have been made aware by the seller that in the original Indenture (1924), the plot of land and the properties were conveyed through the will of a local land owner to the tenants. In this document (I haven't seen it yet), it describes how the properties and land are to be assigned and shared with the rights and benefits heredity to the proprietors and their issues and the successors in title. I assume that answers the question?

As I mentioned above, XXX and YYY own the Common Land as shown on the plan. I have no idea what the garden is in relation to the Common Land owned by XXX and YYY. If the garden falls within the boundaries of the land divided between XXX and YYY according to the plan, then you are unlikely to own it unless you are purchasing the property and land from XXX or YYY or there is something else in the title deeds that says otherwise. If the garden doesn't fall within the boundaries of the Common Land then I don't know what these provisions you have provided, have to do with the garden you are referring to.

The 'garden' is the common land. i.e each property has fences up and treats the common land as a private garden (with access rights through the gardens). The agreement was drawn up to formalise these parcels of the common land. And we are purchasing the property from XXX mentioned in the Agreement.

This is not an easy answer so I will say it depends on a number of factors. You will need to read the contractual agreement and decide what legal rights it grants e.g. a revokable licence, easement (non-possessory right), etc. What you can or can't do with the land will be subject to the rights and restrictions in the title deeds or contractual agreement or in some cases planning permission restrictions especially if the property is a listed building.

I don't see any restrictions in the agreement. It is Grade II listed.

See my points above on my interpretation. Vested is another way of saying the land has legally transferred. Because the agreement refers to a Public Trustee, it sounds like the land was held on trust for the benefit of XXX and YYY until some condition(s) are satisfied. Once those conditions have been fulfilled, the land will legally transfer to XXX and YYY. Whether the land has in fact transferred to XXX and YYY would need to be investigated by your conveyancer (see my point above on root of title).

This is where I am now confused. If the land owner transferred the land and the property to the tenants in 1924, who is this Public Trustee? The language seems counter to that of the Deed?

I guess the Deed from 1922 is something I need to see with my own eyes to have a better understanding of everything!

I have asked for our file to be escalated to someone more senior and I'm also looking for some outside counsel on the matter, but in the meantime, any more thoughts are more than welcome and I appreciate both your time and input.

*edit - also perhaps worth mentioning that because it is a listed building and the land is within the curtilage. I don't know if that has any relevance.

[R0b]

I will read and respond later today where I can but in the meantime, maybe this page can help you understand who the Public Trustee is.

https://www.gov.uk/government/organi...-trustee/about

The PT would have stepped in at some point when certain events are triggered and will hold property on trust for the beneficiaries or, if their power's allow, to own, dispose or do something else with the land. For example, if a previous owner of the land had died without a will and no named executor (as the example given in the above link), the PT would step in and act as the executor to deal with the estate. When the estate is dealt with, the PT walks away.

Property law is not easy to understand especially when other laws and rules overlap!

[DaveNates]

Thank you. I will take a read. To add to the body of information already provided, the Title with the Land Registry states:

The land has the benefit of the following rights granted by a Conveyance of the land in this title and other land dated 14 August 1924 made between (1) Boris Johnson and (2) Nick Clegg.

I'm not sure whether that is of any value