Scottish conveyancing - new build - title deed not seen before being registered

[ConveyancingQuestion]

Sorry for the boring question. Putting here rather than legal because it’s Scotland specific.

I bought a new build property. I have just found out that the title deed registered with the land registry is significantly different to what was shared with me by my solicitor prior to purchase.

My question is, how could my solicit not have had the final version? Would they not have had to agree to it before it was registered?

*solicitor (sorry for typo)

A hopeful bump!

The differences are big. They mean that we can’t park our caravan on our (large) driveway, and also that garden at the side of the house is now communal ground not owned by us and can’t be fenced in, but in the previous version it was part of our garden ground and we could do what we wanted with it. There’s also stuff about not being allowed to build an extension or conservatory which wasn’t in the original version. These are all in the version that is with Registers of Scotland, but how can they be when we never saw them or agreed to them before buying the house?

I’m worried about how much it affects how we live here and also how difficult it will be to sell if these rules have been added on.

I'm not in any way a legal person but I assume your first step to go to your solicitor and ask them the question i.e. did they have sight of and sign off the final version?

How did you discover the discrepancies?

I don't know about the legalities or the garden stuff etc but it's pretty standard for new build estates to not be allowed to fence in front gardens or have caravans or vans parked on driveways.

There is usually a time limit but re vans etc, it might just be until the estate is complete and fully sold. After that you could be fine as long as no one complains.

Someone has complained about the caravan, which is how we found out about the other conditions and change to shape and size of plot (ie not owning the side garden) too.

Solicitor is on holiday for 3 weeks and I am panicking (I know that 3 weeks doesn’t make and difference but it’s a long time to wait for an answer).

I know it’s normal for new builds to have conditions, which is why I checked the conditions we were given very carefully. These are completely different. Some of the original ones are in there, but reworded, and with others added.

How can this happen though? How can the version recorded be different to the one we agreed to? There is a record of us agreeing the original with the solicitor, but ant least it should be easy to prove we never agreed to this version.

There doesn’t seem to be a time limit on either version, which was fine for the original but eg who agrees never to have an extension on a house, which applies even to the new owner when you sell it (one of the new conditions). That’s going to affect the value when we sell!

I think you have to sit tight and wait until your solicitor is back from holiday. Three weeks is frustrating but it's not going to make any difference in the long term to getting this resolved/explained.

It's hard to advise without seeing the relevant paperwork. I assume you've had your Land Certificate back? Before you bought the property you should have seen a title plan with a boundary on it which would have included the garden ground or not. Do you still have that plan? Is it the same as the plan in the Land Certificate?

I wouldn't be so worried about the title conditions. Most estates have conditions re parking caravans, keeping the gardens tidy etc etc. The reality is that people are anxious/annoyed about these things to start with and complain and then they move on with life. There are a few caravans/motorhomes where we are and we have similar conditions. Is your caravan blocking the view/light for your neighbours? Solely in the interests of getting on with your neighbours you might want to think about paying to store it somewhere else for a while and then bring it back and test the water again. Depends on your mindset I guess. As regards extensions or alterations to property, as long as you have the relevant Local Authority consents for any changes carried out then this can usually be resolved on sale of a property. I don't think people generally decide not to buy a property in a new build estate because of what might be in the Deed of Conditions unless there was something really unusual in there.

Thank you. I really appreciate the responses. It’s very stressful, just when I thought all the house moving stress was done.

Land Certificate - no we haven’t had anything back. I had to get the deeds downloaded from the ROS website (or is that the Land Certificate?). I’ve never seen them all as one document before, just seen the different sections of them.

Title plan with a boundary on it - yes I saw this. The one in the ROS deeds is different and excludes the land at the side of the house and a strip at the front.

Yes, I think it’s a good idea to move the caravan for a while. It doesn’t obstruct anyone’s view, but best not to inflame things.

Ok so the plan you approved should be the same as the one appearing on your title so I'm not sure what might have happened there. Your solicitor is the person that can answer this for you, I'd go back to them with a list of questions and see if they can explain the discrepancies. Hope you get things sorted out!

You need to speak with your solicitor. It can take 2 years for a new build to be registered fully. You should have had that plan to approve, along with the standard clauses, deed of conditions, offer to sell from the builder. All of this will have included what you can and cannot park on your drive. I’m afraid to say, most new build development do not permit caravans. Some only allow a max of 2 cards, some no business vehicles. Some even have clauses relating to the number of pets you can have.

The question is when were these clauses/boundaries added/changed? Once the contract has been finalised it is too late to make changes, prior to being finalised it was up to the solicitor to notify you of these changes. Parking a caravan is one thing, not having all the land you thought you were buying and being told you can never extend your house is quite another.

What you need to get is a copy of the signed disposition from the builder to you this will show what legally changed hands and your solicitor should have shown you this usually a couple of days before you get the keys. (£30 from registers) This is what would have been sent to registers of scotland for registration. Because your property is a new build there would have no previously registered title only the builders title for the whole development.
If you have a copy of your new title sheet the burdens section will tell you the date the Deed of conditions was registered this will be before your property was registered otherwise it doesn't affect.
It's common for large development to have more than one deed of conditions perhaps the solicitor missed the second.
Also to the PP who said don't worry about the title conditions, all it takes is one neighbour with too much time on their hands.

Just playing devil’s advocate here but what would happen if you just left your caravan on your driveway? It beggars belief that anyone would take you to court over it?

If you're concerned about waiting until your solicitor returns you could ask the builder. If they're still on site selling the sales exec should be able to help with some information too.

The signed disposition, title sheet etc seem to be what I have now from RoS. My solicitor did not share the full document with me, just the component parts “because it was still being put together”.

There are multiple burdens referenced. Only some of them match what my solicitor shared with me. So for example there are burdens stating that the builder has access over the farm track, burdens saying about access for services etc, but the burdens relating to the restrictions on us (eg parking the caravan) are different to the ones the solicitor shared. Similar but different. The map that shows the land is also different.

I have spoken to the sales office of the builder and they say that I am wrong and that these conditions/burdens would be the same in all documents, and that they will be enforced (but they are not sure how).

They are also confused about the land to the side, because their plot map matches what we thought - ie that the land to the side is ours.

I have a sinking feeling though that regardless of the reasons, this is my solicitors mistake? And probably can’t be corrected now it is registered? Is there any scenario where my solicitor would not have seen/agreed the final deed before it was registered?

Your solicitor would have submitted the disposition for registration they have to upload it onto RoS system so there is no way your solicitor hasn't seen the deed, you are paying them to examine all the deeds and ensure that you are getting what you expect.
Regarding the bit of land to the side this can be easily sorted with some remedial conveyancing especially if the builder thought they had sold you it. It would have been the builders solicitor who drafted the disposition so sounds like faults on both sides.
The burdens in the deed of conditions I'm afraid your stuck with unfortunately.
If I were in your shoes I'd ask for another solicitor at the firm you used to look at this immediately and not wait 3 weeks.

Have you got a copy of the contract (missives)? Does that have a copy of the plan with the extra ground? Sounds like there has been a mistake along the line somewhere. Depending on how the estate has been structured (ownership of common ground etc) I'm sure the builder won't want to be left with a piece of ground in their ownership and so they will want to get this fixed too.

As Gingersay said is there another solicitor in the same firm that can look at this just to offer some reassurance that this can be fixed once the solicitor that dealt with it is back? If not, easy to say but try and not worry. Mistakes unfortunately get made, things can be fixed.

As regards the Deed of Conditions yes you are stuck with these and yes the theoretical neighbour with too much time on their hands could make a fuss but if I was advising the neighbour I'd be saying yes they have title to enforce the condition but I'd be suggesting that depending on the actual circumstances they could potentially have a long, difficult and costly process demonstrating that the caravan is causing a material detriment to the value or enjoyment of their property and if I was advising you I'd be suggesting as above that perhaps you should just move the caravan.

Thank you so much. I really appreciate your responses. I’ll get in touch with someone else at the firm and see what can be done.