Put the tape measure away

Postby mboliston » Mon Sep 11, 2006 8:22 am

Conveyancer..A question...My neighbour's conveyancing plan of 1952 ( the house and garden part )is drawn to scale with dimensions ( the garage part is not drawn to scale but is just a rather wavy line with a measurement ,which is where our dispute is arising ) However , on the title deed accompanying the main conveyancing plan , these specific dimensions are all described as .. 'or thereabouts' .Does this imply that they are not all that accurate on the ground, and are scaled plans al;ways described this way ? and would it follow that the measurement of the garage plot might also be 'or thereabouts ' ?. As the dispute is only over a foot or 'thereabouts ' , this possible discrepancy might help my case !
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Postby mboliston » Mon Sep 11, 2006 8:46 am

ps I meant to add in 1952 that the garage plot was conveyed separately , but at the same time as the house etc . and the hand drawn plan of this plot with the rather wavy 20' dimension was 'for identification only ' whereas the main conveyance scaled plan was 'more particularly delineated 'etc
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Postby Conveyancer » Mon Sep 11, 2006 12:00 pm

The first point to make is that land can be measured accurately and to the nearest inch and this has been the case for I don't know how long - certainly going back to the nineteenth century. If a surveyor prepares a plan (say one delineating a building plot) and another surveyor, knowing the basis on which the plan was prepared, looks at the plan he should be able to mark out the plot. Or to put it another way, two surveyors using the same method measuring the same piece of land should come up with the same data and produce identical plans. Of course the real world is a bit messy and in practice there will be discrepancies.

Highly accurate plans have never been a requirement of the English conveyancing system. This is partly because of the expense involved in producing accurate plans and partly because they are not really needed; in any event accurate plans have their limitations for the reasons explained above. It should be remembered that in some ways a plan is similar to a photo - it only show the position at one moment in time.

Where a plan is said to be "for indentification only" this means that if there is a discrepancy between the description of the property and the plan, the description prevails.

Where a property is said to be "more particularly delineated" on the plan this means that if there is a discrepancy between the description of the property and the plan, the plan prevails.

In neither case is anything actually being said about the accuracy of the plan.

Dimensions are often said to be "or thereabouts" "little more or less" or "approximate". This is really no more than a precaution in case the measurements were not accurate, but is nevertheless a warning that the measurements are not to be taken as exact.

In the interest of trying to get over the point that when property is registered it is the title plan you need to go by, I have perhaps over-emphasised the point that pre-registration, and indeed transfer, plans should be treated with the utmost caution. Where such a plan can be useful is if it confirms what you find on the ground. What you should not be doing is looking at old plans and trying to make everything fit into them.

The rule of thumb is that where you have an established boundary feature, the legal boundary will run alongside it or somewhere in it.
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Postby mboliston » Mon Sep 11, 2006 8:32 pm

thank you Conveyancer, what you say is very helpful !
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Postby Conveyancer » Sun Nov 12, 2006 5:04 pm

Can this thread be made into a "sticky" please?
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Postby mboliston » Mon Nov 13, 2006 9:29 pm

Yes Conveyancer, I agree it would be a useful 'sticky ' for anyone facing a claim for rectification of their title by their neighbour based on old pre registration deed plans . In our case ,the L.R. adjudicator ruled in our favour ,mainly for the reasons you outlined in your post of sep. 11.ie that old pre registration plans could not be relied upon for accuracy, and therefore our registered title plan should take precedence.( However ,we argued it out for over 3 hours in court without a solicitor, and had to wait for 4 weeks for the adjudication result .very nervewracking . I would advise anyone else going through the same court procedure to make sure they have thoroughly researched their case, taken on board all the invaluable advise from this forum , and have all their facts at their fingertips , or preferably in their head..no fumbling around with notes !! )
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Postby andrew54 » Tue Nov 14, 2006 4:53 pm

mboliston wrote:...we argued it out for over 3 hours in court without a solicitor,


People often ask how much does it cost to take things to court. I am very interested that mboliston went to court without solicitors. Possibly in a new thread mboliston could tell us more about the costs and pitfalls of not using a solicitor.
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Postby Worldlife » Thu Dec 07, 2006 6:19 pm

Conveyancer wrote:Can this thread be made into a "sticky" please?


Agree absolutely!!!!

As an absolute newbie I had difficulty in refinding this excellent and helpful thread. Eventually to put in both Conveyancer's handle and a few words from the title. Good thing I had made a printout.

The information here is very useful in connection with a problem we are experiencing with the other owner of an end of terrace Edwardian house that has been converted into two flats.

About three years ago the property changed from being two freehold flats to one shared freehold and a lease for each of the two flats. When I then pointed out the rights of access for the ground floor flat to pass through the rear garden (owned by the first floor flat) did not match what was shown on the deeds the solicitors preparing the changeover documents stated that what was on the deeds was for general guidance. The access through the garden was needed to use car parking spaces at the rear of the property.

Two years ago the first floor flat was sold and the new owner asked us if she could relocate the gate in the rear fence so that the pathway running through her rear garden was offset more to the side of the property. This we agreed.

Our flat is tenanted and last week I was undertaking some repair work and a visitor to the upstairs flat asked me to move my car so that he could get easy access through the gate (I knew I was near the gate but thought it was because I had purchased a longer car!)

Yes I got the tape measure out and estimated that the fence had been moved to extend the garden of the first floor flat by almost a metre.

We contacted the previous owner and he kindly provided a photograph from 2004 showing that the fence was in line with garden divider of the adjoining property with reference also to a pier where the garden divider met the boundary wall.

A recent photograph shows clearly the distance the fence has been moved from the 2004 position.

We are stating that the fence was as shown in the 2004 when my late mother in law purchased the property in March 1985.

The breach of trust caused by the relocation of the fence and the added difficulties in access in moving the gate behind one car instead of between two parked cars has made us appreciate the wisdom of the arrangements as photographed in 2004. Would the betrayal of trust enable us to reconsider the verbal consent we gave for the relocation of the position of the gate in the fence?

In an earlier letter we had referred to Ancient Lights protecting the rear windows (currently abathroom and utility room) where the new owner applied for planning permission for a loft conversion including a staircase overshadowing these windows. These windows have been totally unobstructed since March 1985 and we have raised our the question of our rights under The Prescription Act 1832.

We have found the County Small Claims Court very helpful. Not so for getting information on taking action to resolve these issues.

The application for the injunction has no guidance notes and the first section offers problems in that you ask that the Defendant "be forbidden (whether by himself or by instructing or encouraging any other person"
(fill in the blanks)

So am I right in thinking one has to phrase things along the lines of "to place a fence on property that does not belong to the defendant" and "to prepare proposals or effect plans that would cause the obstruction of the right of light of windows having the protection of Ancient Lights"

The loft development proposals and platform for the staircase were subject to objections from neighbours because their gardens would be overlooked and the plans were rejected by the Planning Authority.


We have advised the leaseholder of the first floor flat "the freeholders have not transferred to you ,as leaseholder, clear and absolute rights to the use of the roof space and certainly as leaseholders of the ground floor flat we have rights to use the loft space"

The only reference to "roof space" is in a clause concerning the right of the ground floor owner to maintain a television aerial upon the roof or within the roof space"

Water tanks, plumbing and wiring are also mentioned.

The main references in the deeds are to the roof. Am I correct in thinking that if the freeholders intended the roof space to be available for development their would be some clear clauses within the deeds to show this intent?

Well thanks for the time and trouble you have taken to read this missive and any pointers you can give would be most helpful.

Hopefully the solicitor acting for the first floor leaseholder will indicate the points of agreement and the points of dispute.
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Postby Conveyancer » Fri Dec 08, 2006 10:43 am

I think you can get over the snag on the court form by writing something like: Forbidden to occupy the land of X and ordered to move the fence to the boundary line.

Roof spaces can be a bit of a problem in conversions. It will all probably come down to the wording of the lease. You need to get a solicitor to advise.
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Postby Worldlife » Fri Dec 08, 2006 5:34 pm

Thanks Conveyancer

I think the owner concerned had been watching a television programme about how easy it is to make a fortune developing property!

On the bright side she has admitted moving the fence but said that she had allegedly done so on the advice of her solicitor. There had recently been a transfer of the deeds to the Land Registry electronic records.

Would it be correct that, even if filed plans showed the garden area to be larger than was in 2004 , the owners of the parking area have the rights to the land enclosed by the fence between the parking area and the garden because it has been in their possession for more than twelve years? (Adverse possession?)

Does a warning letter of the intrusion prevent a future claim making the recent illegal intrusion develop into one of adverse possession? I think I read somewhere that you have to take enforcement action.

I have stated that our letter and emails concerning the movement of the fence to extend the garden, ancient lights and use of the loft space will be placed on file. Presumably these letters, unless resolved, would have to be declared on any future sale of the leasehold or transfer of the shared freehold.

Our 'property developer' has promised us she has forwarded the correspondence to her solicitor who will I feel certain wish to clarify matters for his client.

I recall a conversation with an Estate Agent stating there was a very high additional value to a property with exclusive use of a loftspace in comparison with one where the situation was not entirely clear.
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Postby Conveyancer » Sat Dec 09, 2006 11:24 pm

I think you need to go and have a word with the solicitor who prepared the "changeover" documents if he left it unclear. I can hardly believe that he drew up an important part of the leases on the basis that that the wording was for "guidance only".

If the flats were formerly freehold it would almost certainly have been the case that the first floor flat owned the roof space and really ought to have been given it with their new lease.
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Postby Worldlife » Sun Dec 10, 2006 12:43 am

Thanks Conveyancer........

Would underline that the "for guidance only" statement from the solicitor related to the fact the actual pathways in use through the garden of the ground floor flat to the rear parking area did not have to be exactly in accordance with the plans accompanying the deeds. What was now there was the practical application established over many years of developing a feasible route agreed by all parties.

Our contention was that the new owner did not have exclusive rights to the roof space in so far as the ground floor flat had:-

"The right to maintain a water tank in the roof of the upper flat with all necessary service and other pipes to ensure the passage and running of water from and to the Lower Flat and the said tank" and

"The right to erect and maintain at all times a television aerial with the wires leading thereto upon the roof or within the roof space of the retained premises as the Purchaser may deem appropriate for the use of the owner or occupier from time to time of the sold premises making good any damage caused thereby"

There is no water tank in the roof space at this point of time. It was our view that if the roof space were converted to make additional living space it would restrict the right of the ground floor flat to place a water tank in a position that was most effective for the distribution of water supplies.

Certainly every inch of the roof space was used in the proposed development plan and no areas designated for a water tank or aerial.

If the developer had discussed matters with us beforehand we would have sought advice as to whether we might relinquish the above rights and on what terms.

If you were advising the developer would you be concerned about development of a roof space with the above conditions in place?

In general terms would the deeds for a new shared freehold and two new leases differ very much from the two previous freeholds for the two flats?

Any clues for key points to look at as I think we are losing confidence in the solicitor who drew up these changes. (Not our solicitor but the solicitor of the previous owners of the first floor flat) The solicitor for the "developer" recently purchasing the first floor flat required a deed of variation on the access rights to a rear roadway before allowing the purchase to go ahead.
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Postby Conveyancer » Sun Dec 10, 2006 12:13 pm

Worldlife wrote:Would underline that the "for guidance only" statement from the solicitor related to the fact the actual pathways in use through the garden of the ground floor flat to the rear parking area did not have to be exactly in accordance with the plans accompanying the deeds. What was now there was the practical application established over many years of developing a feasible route agreed by all parties.


Noted. Even so, plans would have had to be have been drawn up for the new leases and the opportunity should have been taken to define the means of access as accurately as possible.

Worldlife wrote:Our contention was that the new owner did not have exclusive rights to the roof space in so far as the ground floor flat had:-

"The right to maintain a water tank in the roof of the upper flat with all necessary service and other pipes to ensure the passage and running of water from and to the Lower Flat and the said tank"


The problem with this, since there is no water tank, is the word "maintain". This implies "to keep in existence." Compare the next clause which says "erect and maintain". You are open to the argument that there is no right to install a water tank.

Worldlife wrote:"The right to erect and maintain at all times a television aerial with the wires leading thereto upon the roof or within the roof space of the retained premises as the Purchaser may deem appropriate for the use of the owner or occupier from time to time of the sold premises making good any damage caused thereby"


The problem with this is the word "or". Who is to choose whether the aerial is on the roof or in the roof space?

Worldlife wrote:If you were advising the developer would you be concerned about development of a roof space with the above conditions in place?


Despite what I say above, the position is not clear cut. I would recommend seeking a variation of the leases to put the position beyond doubt.

Worldlife wrote:In general terms would the deeds for a new shared freehold and two new leases differ very much from the two previous freeholds for the two flats?


If we are talking about the extent of each part and rights, no. However, I think that a prudent conveyancer would say to the clients: "The provisions at the moment are like this; are they are correct and in any case do you wish to change them?"

Worldlife wrote:Any clues for key points to look at as I think we are losing confidence in the solicitor who drew up these changes. (Not our solicitor but the solicitor of the previous owners of the first floor flat) The solicitor for the "developer" recently purchasing the first floor flat required a deed of variation on the access rights to a rear roadway before allowing the purchase to go ahead.


I think that first of all you need to stand back and ask yourself not what does your neighbour gain, but what do you lose. From what you say I have the impression that having a tank in the loft is not really important and I would hazard a guess that your TV reception is satisfactory. If there are sound reasons for opposing the alterations you really ought to be looking at the provisions of the leases relating to alterations.
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Postby Worldlife » Mon Dec 11, 2006 7:47 pm

Conveyancer - thanks so much for suggestions.

You have encouraged my alter-ego Arbitrator to join the thread http://www.gardenlaw.co.uk/phpBB2/viewtopic.php?t=4761 to get to the root troubles of this dispute.

Hope you agree that we were diverting too far away from the start theme of this excellent thread.
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Request this thread is made a sticky

Postby Worldlife » Mon Feb 05, 2007 9:20 pm

Thanks again for this superb thread.

With Conveyancer's guidance I have made my case and the other party will restore the fence to the position from which it has been moved.

Their reasoning was that in moving the fence they were exercising their rights to possession as shown on the plans at the Land Registry.

Pointed out that there was a difference between the freehold and leasehold plans as submitted to the Land Registry and in any case the plans did not show a boundary fence that had been in existence for over at least fifteen years.

My adverse possession case based on the position of the fence shown by historic photographs with reference to key fixed points has been accepted.

The other party were convinced they were in the right but relented after spending several hundred pounds on solicitors bills.

Thanks Conveyancer. You gave me the guidelines and confidence to win my case.
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