Part of my garden has no title; what to do?

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SPC100

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Compuslory first registration was completed containing (leasehold) land and house (in an urban area).

There is some land inside the garden walls which was not included in the title/registration, as the vendor did not have title. The garden walls are clearly there a long time. The vendor lived in the house from when it was built approx 50 years ago. I think they were surprised to discover that they did not have title for part of the garden.

The solicitor did not attempt to register this land, but they prepared for a future registration, e.g. they had the previous owner sign a document confriming they had sole and exclusive use of the land for the 50 years they lived there, and transferring any rights they had as part of the sale.

The solicitor who did the conveyance has wound down and is not taking on new business.

I would like to get good title on this land to a) reduce potential complications of future sale. b) potentially put a small extension on it.

I don't know who has title on this land, potentially whoever owns the leadhold on the rest of the site?

I have three questions:

1. Am I better of letting sleeping dogs lie? I am worried about creating a headache, annoying neighbours, and ultimately potentially loosing the use of the land?
2. Can you recommend a solicitor/professional who could help me gain good title?
3. Can I attempt to complete and lodge a Form 5 with the Land Registry myself?
 
That link gives a list of common errors when lodging the form, at least two of these common errors would apply in my case, I don't know what title or whom I would be claiming adverse possesion against.

It appears without these details, possesory title is the most I could register:
"If an applicant can prove possession for the statutory period but there is difficulty proving the title against which adverse possession is claimed, it is open to the applicant to apply for Possessory Title ab initio."
 
I have some similar experience on this and your solicitor was prudent in getting the seller to sign a declaration of sole and exclusive use -- good move.

I would recommend tackling this now and don't put it off -- you have all the information at hand so proceed to finish the job and clean up the title to your house.
Also don't attempt this yourself, theres more to it than just completing forms -- you could type a fairly detailed brief and ask a few solicitors to quote. You don't need a specialist solicitor -- transfers/registration is plain vanilla legal work, you might need an engineer/surveyor to prepare a land registry compliant map but your solicitor will advise if this is needed.

I presume you looked on landdirect.ie to see if the garden is registered?
 
Thanks - good to hear others have been through it. What was your situation?

I have looked at landdirect. It is as expected. The land the house is on, and most of the garden is registered. But part of the garden (within the walls shown on the map) is not registered.

Could there be any bad side effects from trying to clean this up? e.g. What if we disocer the legal owner (potentially the person we are leaseholding the rest of our land from), and the registry write to them, and then they try to re-claim possesion of the land within our Garden.
 
Where your main title (the house) is leasehold, you have a very real problem getting title by adverse possession. There is a legal presumption that you have encroached and have only acquired the right to remain in possession, and not the actual title. The presumption can be overcome, but it's an uphill struggle and I suspect you may be wasting your time, and it may end up taking a couple of years and a lot of money to get it to that point.

In this situation, it would probably be a lot better to get a transfer if the property to you if you can.

To answer your specific questions.
1. This may be the the only real option.
2. Sorry, no.
3. While you 'can' do it yourself, I'd highly recommend using a competent solicitor. The technical nature of them makes it hard for a lay applicant to do. In any event, it would likely fail for the reason above.

An alternative to consider is to get a vesting certificate under the Ground Rents Acts, giving you the freehold for your house. Then wait 12 years before making your application based on possession, and then the encroachment issue is gone. The declaration from the previous owners will be useful then, so keep it safe.
 
j26 - thanks for taking the time to share your knowledge.

Most of the houses in the estate are leasehold, so I would assume this part of the garden is leasehold too.

How would I go about getting a transfer of the property? I guess I need to find either the leaseholder or the ground landlord (or descendents) and ask them to sell it?

I did want to get freehold one day, but I have not started that. I wondered when getting freehold if there was any chance, I would get freehold of the extra bit of land too.

I imagined when seeking to get freehold, I might discover the ground landlord of my house, and that they are ikely the person with an interest in the other piece of land within my walls.
 
SPC100 said:
j26 - thanks for taking the time to share your knowledge.

Most of the houses in the estate are leasehold, so I would assume this part of the garden is leasehold too.

How would I go about getting a transfer of the property? I guess I need to find either the leaseholder or the ground landlord (or descendents) and ask them to sell it?

I did want to get freehold one day, but I have not started that. I wondered when getting freehold if there was any chance, I would get freehold of the extra bit of land too.

I imagined when seeking to get freehold, I might discover the ground landlord of my house, and that they are ikely the person with an interest in the other piece of land within my walls.
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Have you any idea who the freeholder is?

In my case it was the local authority who owned the freehold and didn't even realise they owned until I hired a local engineer to do some digging in the land registry along with local knowledge. Once we showed them that they were the freeholder, it was a matter of agreeing an amount to buy out the lease.
 
Local knowledge says the land in the area was originally owned and then developed by the same family. The same family feature in the historic documents associated with my sale. They appear to have leased the land to the vendor. Local knowledge doesn't know how to contact that family.
 
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SPC100 said:
j26 - thanks for taking the time to share your knowledge.

Most of the houses in the estate are leasehold, so I would assume this part of the garden is leasehold too.
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Maybe, maybe not. Every title is different. The developer could have owned the freehold and granted leases of the sites, or could have had a leasehold and just assigned on portions, or even given sub-leases. There may be leases for lives that are renewable, or several other possibilities. It's impossible to tell without a full investigation - Irish land law is a product of a complicated history, and we have some unusual titles.
SPC100 said:
How would I go about getting a transfer of the property? I guess I need to find either the leaseholder or the ground landlord (or descendents) and ask them to sell it?
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Pretty much - the Vesting Certificate route would likely be easier.
SPC100 said:
I did want to get freehold one day, but I have not started that. I wondered when getting freehold if there was any chance, I would get freehold of the extra bit of land too.
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No, the vesting certificate will only give what was given in the original lease. It won't solve the extra bit. That would have to be sorted later.
SPC100 said:
I imagined when seeking to get freehold, I might discover the ground landlord of my house, and that they are ikely the person with an interest in the other piece of land within my walls.
Click to expand...
In all likelihood, but as I said earlier, it's impossible to tell for certain without a full investigation.
 
Thanks so much J26, I really appreciate you taking the time.

I understand it all depends on the specifics, and individuals involved, but in your experience, is there a much chance of an outcome where I would could come out worse off?

The main two negative outcomes I can see, would be
a) I find the owner, and communicate with them, and then they take a hardball approach and turn up and start fencing off part of my garden (that they previously were unaware/uninterested in) and start expensive legal process? (i.e. I lose the use of space)
b) I have to pay a noteable sum to buy the space that I am already using (i.e. I lose money!)

The benefits I see are
a) simpler/faster/potentially more money from a future sale
b) design possbility to put some of an extension on that land

Although it seems that the process may take years, so extension part is not much benefit to me.
 
SPC100 said:
Thanks so much J26, I really appreciate you taking the time.

I understand it all depends on the specifics, and individuals involved, but in your experience, is there a much chance of an outcome where I would could come out worse off?

The main two negative outcomes I can see, would be
a) I find the owner, and communicate with them, and then they take a hardball approach and turn up and start fencing off part of my garden (that they previously were unaware/uninterested in) and start expensive legal process? (i.e. I lose the use of space)
b) I have to pay a noteable sum to buy the space that I am already using (i.e. I lose money!)

The benefits I see are
a) simpler/faster/potentially more money from a future sale
b) design possbility to put some of an extension on that land

Although it seems that the process may take years, so extension part is not much benefit to me.
Click to expand...
It's impossible to predict how people will react, but it is going to cost money. In a best case scenario, you find one person entitled to the interest who agrees to a rectification, or some other deed to tie it all up. At the very least, you'd be expecting to pay their legal fees. At worst, you find a fragmented estate with 50-60 relatives all entitled to a share, and you go down a neverending rabbit hole of negotiations. With 50-60 people there will be a couple lunatics that believe that your scrap of garden is worth tens of thousands to them personally.

I wouldn't be too concerned about losing use of the property, as it sounds like you and the person before you have been in possession long enough for that not to happen. However, it's worth getting a solicitor to look over that before you start out.

Solicitors that practice in the locality are generally good as they have dealt with titles from the area before and may already know the title to the estates in your area. All solicitors that deal with land will be able to help you, but local knowledge is very useful here.

A vesting cert and sort out the extra bit down the line still probably looks to be your best shot.
 
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