New build house - boundary fence in incorrect position

Re: New build house - boundary fence in incorrect position

Postby MacadamB53 » Thu Dec 03, 2015 8:58 am

Hi John W,

buying off plan is very much "hit and miss" insofar as things rarely go to plan.

as I mentioned before, this may be a case misrepresentation - the land wasn't included when the OP was led to believe it would be - rather than the OP owns the land and the fence needs moving.

however, this is based on an assumption so let's see what wording was used to describe the land (because this tells us what the OP agreed to buy)...

Kind regards, Mac
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Re: New build house - boundary fence in incorrect position

Postby wtc » Thu Dec 03, 2015 11:04 am

Box 3 of the TP1 contains very little:

3 Property: Plot xx <Development Address>
The property is identified:
[Checked box] on the attached plan and shown: edged red
[Unchecked box] on the title plan(s) of the above titles and shown


Just to be clear, it was the vendor intention that I have should have this land as the developer agrees with me. The fence contractor representative - when visiting the site with a developer representative and me - stated that if the fence looked to be roughly right angles to the house, then that is probably where they put the fence, ignoring the plan. The fencing company are admitting they put it in the wrong place.

(Edited due to typos)
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Re: New build house - boundary fence in incorrect position

Postby wtc » Thu Dec 03, 2015 11:11 am

MacadamB53 wrote:that map is based on a design plan when no development was there at all and so you cannot say with any certainty where Point B is in the real world because you're assuming everything else was built to plan to perfection.

Could it make any difference if everything else on the design plan was built to perfection i.e. all houses, all other fences? Just not the one under dispute?
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Re: New build house - boundary fence in incorrect position

Postby pilman » Fri Dec 04, 2015 3:26 pm

Despite some of the comments made by MacadamB63, the plan referred to by the OP is part of the deed of transfer.
A plan drawn at a scale of 1:200 is certainly sufficient evidence to provide to a court should the area of land that has now been enclosed by an incorrectly positioned fence become subject of a boundary dispute, or a breach of contract action.

The fact that the OS survey showed where the fence was erected just means that the Land Registry General Boundary rule applies when the title plan used that OS plan to identify the property on first registration.

The Development company is currently in breach of contract because that same 1:200 plan was included in the contract.

Using that quality of scaled plan it should certainly be possible to establish the correct area of land included in the contract.

One would also assume that the same scaled plan at 1:200 was used when identifying the other house sold by the developer.

The onus is firmly on the developer to rectify the situation, despite what the neighbour seems to be implying about needing a survey. Even that ought to be done at the cost of the developer, because inefficient supervision of a sub-contactor is negligence when the area of land contracted to be sold is incorrectly identified by fencing located in the wrong position.
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Re: New build house - boundary fence in incorrect position

Postby arborlad » Fri Dec 04, 2015 6:17 pm

wtc wrote:* Measure the current ground layout
* Establish the boundary with reference to the appropriate documents
* Draw up a plan suitable for Land Registry boundary determination

Is this sufficient? I would want to ensure the second step isn't skipped! I presume the first step is necessary both the show there is a problem with the fence position and to set the determined boundary with reference to position of buildings.



Unfortunately you wont achieve a Determined Boundary, not without the neighbours agreement.
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Re: New build house - boundary fence in incorrect position

Postby wtc » Fri Dec 04, 2015 11:59 pm

arborlad wrote:Unfortunately you wont achieve a Determined Boundary, not without the neighbours agreement.

I certainly recognise this! It was the neighbour suggesting getting a surveyor involved (for mediation). Although the facts are already there in front of us, I could see that the work of a professional in the field to effectively relay those facts back might help him come round. Of course, whether the neighbour accepts what the surveyor comes up with is another matter.

I guess I'm after what the different levels of surveyor involvement involve. Say we get a surveyor who presents the facts, both sides agree, then it's easy. But if one side is stubborn, then mediation might be needed. Though the facts are as before, I'm assuming the extra work and extra cost just comes from getting the disagreeing side to agree.
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Re: New build house - boundary fence in incorrect position

Postby wtc » Sat Dec 05, 2015 12:08 am

pilman wrote:Despite some of the comments made by MacadamB63, the plan referred to by the OP is part of the deed of transfer.
A plan drawn at a scale of 1:200 is certainly sufficient evidence to provide to a court should the area of land that has now been enclosed by an incorrectly positioned fence become subject of a boundary dispute, or a breach of contract action.

The fact that the OS survey showed where the fence was erected just means that the Land Registry General Boundary rule applies when the title plan used that OS plan to identify the property on first registration.

The Development company is currently in breach of contract because that same 1:200 plan was included in the contract.

Using that quality of scaled plan it should certainly be possible to establish the correct area of land included in the contract.

One would also assume that the same scaled plan at 1:200 was used when identifying the other house sold by the developer.

The onus is firmly on the developer to rectify the situation, despite what the neighbour seems to be implying about needing a survey. Even that ought to be done at the cost of the developer, because inefficient supervision of a sub-contactor is negligence when the area of land contracted to be sold is incorrectly identified by fencing located in the wrong position.

Pilman, your post is what I had hoped to hear. Regarding scaling, I should clarify a few scales that might make things less strong but hopefully still sufficient:
At the reservation meeting, there was sight of the 1:200 developer plan and 1:500 conveyance plan, both A1 size, with signature by the buyer and developer salesperson on the reservation forms only. These cover several houses and so I would expect the same documents to be used for multiple sales.
The contract and TP1 had the same conveyance plans, but reduced to A3 size, making them 1:1000. I'm hoping that full size A1 versions can be made available by the developer.
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Re: New build house - boundary fence in incorrect position

Postby arborlad » Sat Dec 05, 2015 7:37 pm

wtc wrote:I cannot believe the neighbour has a different contract, though he had not been willing to show his contract or transfer to me.



This is not in your neighbours favour, when something is in contention, you use all available evidence to contest it.
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Re: New build house - boundary fence in incorrect position

Postby pilman » Sun Dec 06, 2015 1:45 pm

The planning application would have included plans at a scale that allowed the LPA the opportunity of deciding the application.

It would be sensible to see if there are plans still shown on the LPA's web-site, or make a phone call to the LPA to verify where copy plans are kept.
Before web-sites used scanned copies of plans, the paper plans were copied to microfiche so that one could go to the LPA's office to see those original plans on the viewers kept in the reception area.

The chances are that the 1:200 and 1:500 scale plans were provided by the developer, so seeing those plans would confirm what you remember from the original meeting with the sales person acting for the developer when you agreed to buy your plot.
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Re: New build house - boundary fence in incorrect position

Postby wtc » Mon Feb 01, 2016 5:36 pm

Following a gentle pm prod by Mac, I can give an update of where things are.

I have had someone more senior from the developer on the case. He had agreed to get surveyors involved to measure the as-is, compare to the original CAD plan and state how much the boundary is out. He can tell that there is a mistake made by the developer's subcontractor. As the developer is covering costs at this stage, they have appointed their own chartered land surveyors, which I was happy to go ahead with.

They came to measure up before Christmas, though that is as far as I know it has gone. I'm on holiday at present so will chase up soon to continue progress when I'm back.
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Re: New build house - boundary fence in incorrect position

Postby ParallelLines » Mon Feb 22, 2016 3:39 pm

wtc,

I have been through this process and it cost about £800 for the surveyors to datum peg and produce a map for the LR. Then the legal work cost quite a few hundred more. In total it was about £2K including both sides legal cost.

What we did was agree it all first before getting a surveyor in. I would be very wary about using any 'mediation' surveyor because if you both agree to be bound first you are at risk of a perverse decision which you would then be bound by.

Looking at the map you provided, can the side wall of next door really be a boundary? This would place their foundations on your land. And what if they needed to have some shingle drainage at that point? Or shrubs could undermine them.

On a practical basis, you could write the the MD as like the betting firms, they hate bad publicity of this nature.
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Re: New build house - boundary fence in incorrect position

Postby wtc » Tue Jun 20, 2017 11:57 pm

Over a year on and there have been a few steps forward, but also a few back. This a bit of a long post.

Following my last post, I received the following plan from the senior contact at the developer (note this copy has been cropped, redacted and had the blue writing added). The red lines are from a conveyance plan (later revision than mine), the green lines are the as built as measured by the surveyor. In addition, there was agreement from the developer that the fences were in the wrong place.
Image

While my boundary should run from A to B to D, the fence runs from A to C to D. As the plan is a PDF line drawing, I can use the measuring tool on Adobe Reader to estimate the area I am missing is circa 25 square metres.
The oddity is that my signed transfer plan had the boundary with neighbour 3 running from E to D, in line with the as-built, which the developer contact agreed. See further below on this though.

So far so good. But then communications with the senior contact dried up, only for him to leave the company. His direct successor has refused to answer my calls or respond to messages. I can only go via customer services.

Still not getting any further this year, the overall message from the developer is no longer helpful. The developer's legal team via customer services now state the contract for purchase allows for immaterial changes to boundaries. Furthermore, they told me that post completion, the Land Registry identified a discrepancy between the transfer plan and OS survey. The developer created a new transfer plan that went to our conveyancer for us to sign and that went to the Land Registry.

As I have no recollection of this, I have got the original conveyancer to retrieve the file and I bought the official copies of the transfers for mine and my neighbours’ properties from the Land Registry. All my neighbours have transfer plans identical to the one I signed (except with their respective properties outlined in red and their own signatures present). This is as the red lines of the plan above, except a line from E to D instead of E to F.

What I have established is that my transfer plan alone was replaced. This was facilitated by my conveyancer but without my permission. My official copy plan has no signatures and in line with the plan above i.e. line from E to F. While it is different to what I signed, the changes do not even reflect the mistake with the fence positions – I am left with issues on all three sides. In addition to the 25 square metres for which I do not have possession, there is a further 12 square metres where I do have possession but the transfer plan does not appear to show ownership.

My relations with neighbour 1 are good. He is not dead set against the fence being moved. His main priority is that he has no issues when he eventually comes to sell and that he does not want to incur any costs. But he wants something in writing from the developer.

Unexpectedly for me, neighbour 2 sold the property and moved out, probably without being aware of any boundary issues. The new owner has not moved in yet.

As requests to the developer are going nowhere, I have looked to use the legal expenses cover of my home insurance. I have (slowly) passed the first step in that the legal expenses insurer have approved it is potentially eligible. It has only just gone to the panel solicitor to carry out their assessment as to whether it is likely to succeed. They have not had it long, but asked questions that suggest they have not read the statement given.

An annoying aspect is that they require:
“a RICS Chartered Surveyors Report, following a site inspection and a review of the Transfer dated 30 August 2013 for your property, to comment on
- The position of the legal boundary between the respective properties
- If the boundary fence represents an encroachment onto your property and if applicable, the extent of the encroachment.
Please note that as the report is required to help confirm that your claim satisfies the terms of your Policy, your insurer will place the onus of obtaining and funding the report on you”


The concern is that a site inspection has been done and paid for by the developer by a long established surveyor firm, but who are not RICS certified. I believe they did not comment on the Transfer. I have to keep the cost of the claim as low as possible. Yet, if I have to redo the site inspection with another firm, I would want the cost of this to be met by the developer.

Furthermore, the solicitor seems to suggest the claim against the fence should be against the neighbour. I am not sure what would be gained by making such a claim. The neighbours did not put the fence there and I would not expect them to foot the bill of moving it. It is quite possible that all the submitted information has not been read.

Questions for those on the forum are:
  • Do you think it is worth going with the panel solicitor and home insurance cover, or risking fees myself and finding a boundary specialist solicitor? Keeping it under the home insurance but having any other solicitor is not possible unless it does actually get to the court stage.
  • Should a RICS surveyor be a necessity here? I appreciate the benefits professional bodies bring, but should it be reasonable to require another as-built survey.
  • Does a claim against the neighbours seem right? Obviously they have to be involved, but it was not their action that led to the situation.
  • The transfer plan usually carries significant weight as to where the legal boundary lies. Has anyone here any experience of where the transfer plan has been overridden such as mine?

In response to ParallelLines above, I can confirm that neighbour 1's garage does form part of the boundary and the eaves overhang this (and foundations would also overlap). There was a provision in the transfer to allow this. I don't think this has any bearing on the dispute in that the boundary starts at the corner of the building marked with A, whether as built or as intended.
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Re: New build house - boundary fence in incorrect position

Postby jdfi » Wed Jun 21, 2017 7:27 am

wtc wrote:
Questions for those on the forum are:
  • Do you think it is worth going with the panel solicitor and home insurance cover, or risking fees myself and finding a boundary specialist solicitor? Keeping it under the home insurance but having any other solicitor is not possible unless it does actually get to the court stage.



Yes. Fees can absolutely mushroom. To prepare for the first court hearing (which may well be against both the neighbour and the developer) with all the documents, reports, counsel costs could well be low five figures.
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