‘We bought a house and the seller didn’t tell us about a planning application – are we going to lose land?’
Every Saturday, we get an expert to answer your financial problems or consumer disputes – email us yours at moneyblog@sky.uk. Today’s problem is…
Just under two years ago we bought a property in a village in Staffordshire. Around eight months ago we discovered that a parcel of land directly behind our house had a planning application proposal made on it eight years ago.
We were contacted recently by the owner of this land to advise us that he was looking again into seeking planning permission for several houses on it. If this goes ahead we lose the view from the back of our house and as such suffer a hugely detrimental effect on the enjoyment of our home.
As part of the discussion with the landowner, we discovered to our shock that he had been in contact with the previous owner of our house. He had served a letter on her through a solicitor to the effect that she had erected a wall at the bottom of the garden that had encroached on to his land. This effectively narrowed the entrance off the road to this land, which had some effect on pushing back on the planning application.
If the boundary issue is found to be correct in the favour of the landowner, we will lose part of our garden (no idea yet how much is at stake). The double whammy, of course, would be the entrance off the road into the field is widened, thereby opening up the potential for the land to achieve planning.
Anonymous
Thank you for getting in touch.
There seem to be two issues here. One, the risk of you losing your land, and two, whether you have a claim against the seller for not revealing all of this before you bought their home.
In the past, it was up to buyers to ask questions to discover any issues with properties, and if they didn’t, sellers weren’t legally required to reveal information.
This changed in 2013 when the sale of a property was brought under the Consumer Protection Against Unfair Trading Regulations, and the onus was placed on sellers to reveal information that could legitimately affect a buyer’s decision to purchase a property.
Some of the information that should be disclosed includes whether a violent death took place in the property, if there are any pests or Japanese knotweed problems, either or in the past, any structural issues and, what’s important in this case, any planning permission, whether it was granted, is pending or was denied.
The seller should fill out any of these issues on a Property Information Form, also known as a TA6 form.
You told us this information was not on the TA6 form when you bought the home, and there were no disclosures made verbally or in writing about the land, the planning proposal or the boundary fence.
So let’s start by looking at whether you could lose some of your land…
I spoke to Megan Harding, an associate at law firm Farrer & Co, about this problem and she explained the landowner could be entitled to recover the strip, causing you to lose some of your land.
She said ownership was determined by legal title, meaning the person or business officially registered on the property deeds – or in the land registry – is recognised as the legal owner, regardless of who paid for the property or who lives in it now.
Land registry plans show only general boundaries, and a precise line has to be established to determine who owns what.
This is done using title documents, conveyances and extrinsic evidence, and a long-standing wall is not enough to claim that the land is yours.
Harding explained you might be able to gain legal ownership of the land you’ve been using without permission, a process known as adverse possession under the Land Registration Act 2002, but that it’s not easy.
Each case depends heavily on the exact situation, and you must clearly show two things:
- You actually used and controlled the land (factual possession);
- You intended to treat it as your own (intention to possess).
The burden of proof here would lie with you, so you would be required to provide evidence showing how you meet the specific requirements.
Where does all of this leave you with the seller?
Harding said the solicitor’s letter alleging that the wall encroached on the landowner’s land should have been disclosed and failure to do so “likely constitutes misrepresentation”.
While misrepresentation allows for rescission, meaning your contract with the seller is cancelled and the purchase is essentially reversed, Harding said the usual outcome was damages being awarded.
“These are quantified by the difference between the price paid and the property’s true market value at purchase, factoring in the boundary risk,” she said.
“A valuer should also assess the property’s hypothetical value if the wall were moved and planning permission granted, which represents the upper limit of recoverable loss.”
She added that expert evidence may be needed to prove that planning permission depended on the wall’s relocation.
What should you do next?
Harding advised that your next step should be to get legal and surveying advice to work out the true boundary position.
This will help you work out whether any adverse possession claim is “realistically arguable”.
“That assessment will inform both the risk of losing part of the garden and the potential impact on value,” she said.
“Depending on the outcome, the buyers may then wish to consider taking pre‑action advice on a potential misrepresentation claim against the seller.”
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