Garden of house we're buying isn't shown on land registry documents: wwyd?

[afussyphase]

We're buying a terraced house that was public authority built. The houses back on to lovely communal gardens. At some time in the past 30 years, I gather that each house fenced off a small garden/patio area at the back, and these are now for the exclusive use of the houses' owners. (One guy's built a deck on his and hedged it off for example). But when we got the land registry documents, we saw that the red line outlines only the house. The EA floor plan showed the garden.

I don't know what to do here - we thought we were nearing exchange but now I'm worried that if we don't actually have ownership of any outside space (despite having exclusive use in practice) it'll impact the value of the house when we sell. Presumably for example we, or future owners, wouldn't be able to build a conservatory on it, although it seems pretty clear that no one will come along and question use of it as a garden/patio/bbq space. I guess we can call the surveyor, and if he remembers the place, maybe he'll be able to give an opinion on the valuation difference. Also, I guess if the current owners have had exclusive use for more than 12 years, squatters rights might apply, but presumably they wouldn't apply to us! What would you do?

Query it with EA/current owners - if they think the records are wrong (they sometimes are!) then they can pay to deal with getting it corrected. In the meantime, definitely contact surveyor and maybe put in a revised offer?

Get your solicitor to query this and if the 'garden' isn't part of the sale reduce your offer accordingly.

Agree - you need your solicitor to advise on this urgently.

Whatever you do do not take the estate agents word for it.

The current owners may be able to prove that they own the land through adverse possession, but you need a solicitor to advise and ensure that it is reflected in the deeds if that is the case.

The EAs plan is only what they see on the ground and what they're told by the vendor. They have no liability to get it right, as far as I'm aware. The plan of the plot on the Title Deed with LR is what you are potentially buying, not the selling details (although, yes they should be accurate).
It is for you and your solicitor to find/check out -doesn't sound good though.
I imagine the land is still in the ownership of the local authority? Can you contact them to find out what the situation is and whether the area being used as garden can be purchased?

Has your solicitor only just picked this up? It's not a rare situation or an insurmountable problem, but it must be a worry for you at this stage, I expect.

I think the procedures differ depending on whether or not the land is registered but basically the present owners need to give a statutory declaration regarding the land detailing their exclusive use for x years, whether they've maintained it, fenced it off etc. If they meet the requirements they'll be granted a possessory title over the land.

But really your solicitors need to get on the case - it's what you're paying them for.

Definately what you pay the solicitors for.

DO NOT involve estate agents, as others have said, aside from informing them what's going on. This is definitely one for the solicitor.

I think the current owners need to sort this out before sale, OR reduce the price accordingly - I'd imagine you're right about the lack of extension potential. There may also be all kinds of rights of way across the land if it's actually a communal space, no matter what everyone's agreed between themselves informally over the years.

Thanks everyone for all your helpful ideas. I did raise this with the solicitor actually last week and haven't heard back, but she's generally been very much on the ball, so she's probably looking into it. starling's idea that they could give a statutory declaration about when they fenced it off (which they did, as did others in the row), etc sounds promising; if they had a possessory title it could presumably be transferred to us like the other title. Yes, the EA (who happens to also own one of the other houses so he really should have flagged this when he bought his house!!) just said emphatically that no one else could use the garden. but we weren't really worried that neighbours would suddenly decide to have their bbq in front of our window instead of theirs :)

The EA can say what he likes, emphatically or not. but it means absolutely nothing. Wishing you luck in getting clarity and hopefully vendors can sort it out. Otherwise you may need to prepare yourself to walk away, if a deal breaker for you (it would be for me).

hm, interesting mylovelymonster - this would be a deal breaker even if you continued to have exclusive access to the garden space (which is relatively small though well big enough for bbq, garden furniture)? the communal gardens, which this little patio/garden backs directly on to, are large, well-maintained and attractive, so it's not that we'd be stuck with no green space - just the technicality of not having the title to this bit. And actually I'm pretty sure we couldn't build on it anyway because of the covenants attached to this terrace... so for us, it's really about whether it would affect future buyers. does anyone else think this would be deal-breaker or would affect their decision to buy?

Get solicitor to raise query. If they dont have it, get sellers to take out title indemnity insurance which you can rely upon and transfer on to future buyers.

I think the issue would be resale value. A house with a private garden is worth more than the same house with a communal garden. Are you going to have the house revalued based on this development?

I think if you were up for buying a house with a communal garden (I wouldn't be [antisocial] but I do see the attraction) then it would be unlikely to be a deal-breaker - but I do think it merits a reduction in value.

I actually called the surveyor who did the valuation for the bank (we paid for a homebuyer's survey). He was very unwilling to attach a value to the garden or "revalue" without it, citing that without other sales of similar properties with and without this little patch of owned space one just can't tell what it's "worth". I sort of understand the point but it's frustrating since he's supposed to be the one telling the bank, and us, what the property is worth although obviously it's subjective, hard to pin down etc. And he's seen the place; I don't want to pay for another valuation just for this. stealth I'm antisocial too, actually, but a big green area with nice trees and lawn and play equipment all enclosed with no public access is going to be nice even if communal :) And this controversial garden/patio backs onto that, much bigger, space. Also I found out that the title for the EA's place 2 doors down does show his garden included, so it's either some weird error, or perhaps the owners before him got it under squatter's rights or something.

dinkystinky thank you! title indemnity insurance may be exactly what we need, especially if they can seek to get the title but then in the meantime we can proceed.

What does your solicitor say? If the current owners are adamant that it should be on the land registry plan, then they need to initiate (and pay for) the process to get it changed, even if you don't change your offer as a resuly.

I've just had almost exactly the same problem except it's with the front garden being owned by the council. Who actually owns the communal gardens? Is there any risk of them turning them into something else? Like other people have said, I'd be worried about what it does to resale value, and would be looking for a reduction in price as what you'd actually be buying is less than you originally offered on. Only problem is deciding what level of price reduction would adequately compensate you for the unknown resale risk. We walked away from our purchase in the end-just couldn't get comfortable with the risks.

Our solicitor is trying to chase it down, presumably by contacting the vendor's solicitors, who are perhaps are trying to chase it down with the council. Yes, it's effectively the council that owns the gardens and we think there's a covenant that they must be kept as communal gardens, so I think it is extremely unlikely that they would turn up and try to turn this little patch of land into anything else - it has no access except through the house (which is freehold) or through the communal gardens, and if those are to be kept as gardens there's not much that could be done with it. So I think really, we're probably more at risk of any number of other disasters ( being hit by a bus?) than of anything going wrong with it as is, but ... still. ... unless it's fixed we would get less property than we thought, and so we don't want to pay as much (even though exclusive access etc). Will have to see if we can get any other info as to why the house 2 doors down does have it.

We had an issue that not all of our garden was on the plans (we didn't realise when we saw them and signed them off though)... turned out that the owners had bought it at a later date from the council, but hadn't thought to mention that to the solicitors / EA. We only found out after we'd moved in from our neighbour that they'd all bought the extra bit of land at the back of the gardens.

We had to do a second transfer of land, which cost about £50 more, but didn't pay any extra to the vendor.

Hope something similar is the root of your problem - there was just two parcels of land.

I was going to suggest indemnity insurance. My house is something similar. Certainly not a deal breaker, but a very old discrepancy on the original deeds and the indemnity insurance stands for 25 years. Costs very little (my vendors purchased it).

Your solicitor is of course the person who should hopefully be sorting all of this out for you.