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Transfer of property rights on next sale

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CryptoPlankton
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Transfer of property rights on next sale

#222115

Postby CryptoPlankton » May 16th, 2019, 1:23 pm

This issue has only come to light more than ten years after the two property transactions in question:

Firstly, a parcel of land to the rear of a property was sold to a developer, together with a strip to the side to provide driveway access to the two proposed properties and a new garage to the rear of (and belonging to) the existing property. The agreement included a phrase along the lines of "All that piece of land... ...EXCEPTING AND RESERVING unto the sellers and their successors in title to the remainder of the land... ...the right with all persons authorised by them... ...for all purposes in connection with the the use of the retained land to pass and repass over and along the land edged in yellow on the plan...". Essentially, the agreement clearly gave unrestricted access to the driveway (and the right to connect to services along it) to the sellers.

The developer then sold the new properties and the original sellers assumed that their right of access was preserved. However, after discussion with Land Registry following a query over boundaries during a minor planning application, it seems this isn't the case. According to them, the driveway is owned by one of the "new" properties with the other being granted access to the driveway. At a glance, the agreement between the developer and the purchaser of the property with the driveway doesn't seem to mention the owners of the original land. It may be that there is something in the agreement that isn't obvious, but it talks about the shared responsibility for the upkeep between the other two properties and Land Registry seem to think that there is no right of access (though they have only taken a quick look during a telephone conversation).

So, a couple of questions:
1. Is it legal for the right of access retained by the sellers in their agreement with the developer to be excluded from the developer's subsequent agreement with the buyer of the driveway?

2a. If so, is there anything that can be done about it?
2b. If not, what would be the best course of action to get the situation rectified?
2c. If it depends on the wording of the contract(s), are Land Registry responsible for ensuring they have made the correct interpretation or should the original sellers employ solicitors to examine them?

There is no dispute (nor likely to be one in the near future), but there are obvious implications when it comes to selling the property.

Thanks for any thoughts!

Clitheroekid
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Re: Transfer of property rights on next sale

#222255

Postby Clitheroekid » May 17th, 2019, 12:58 am

CryptoPlankton wrote:1. Is it legal for the right of access retained by the sellers in their agreement with the developer to be excluded from the developer's subsequent agreement with the buyer of the driveway?

The first thing to say is that it's impossible to give definitive advice without sight of the relevant documents.

However, if the right of access was reserved as you say then it would, on the face of it, bind the land comprising the driveway, irrespective of whether it was owned by the developer or the people to whom he'd sold the land.

When the land and driveway were sold, LR would normally have made a note on the new title register that it was subject to a right of way, and this would have warned the buyers of the new houses.

2a. If so, is there anything that can be done about it?

Yes, but the remedy would depend on whose fault it was.

2b. If not, what would be the best course of action to get the situation rectified?

See 2a

2c. If it depends on the wording of the contract(s), are Land Registry responsible for ensuring they have made the correct interpretation or should the original sellers employ solicitors to examine them?

The original documents would almost certainly have been prepared by solicitors. LR are not normally involved in the preparation of such documents, though it is possible to have the sale documentation on a development pre-approved by them.

LR's responsibility is to ensure that the rights, covenants and so on in the transfer documentation are accurately reflected in the new title register that they prepare. If they fail to do so through an error there are provisions to enable the relevant register(s) to be amended, so as to reflect the original documents correctly.

If anyone is adversely affected by such an amendment they can, in certain circumstances, claim compensation from LR. In 2017/18 they paid out £5.4m in such claims.

CryptoPlankton
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Re: Transfer of property rights on next sale

#222472

Postby CryptoPlankton » May 17th, 2019, 1:42 pm

Many thanks, CK. Armed with the knowledge that the reserved rights should have been binding, it has been established through a (long!) telephone conversation with LR that they did indeed fail to note this on the new title register. They have referred the case to a different department within LR who, it seems, should be rectifying the records in due course. This will hopefully be the end of the matter for the sellers. (Though I don't know whether there would be any potential issues for the buyers of the property from the developer regarding their agreement, which would now appear to be not entirely correct/valid?)

Thanks again, much appreciated.

CP


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