Carter Jonas
Carter Jonas

Make sure you can see well beyond the fuchsia!

Inspecting the boundaries of a property before buying it might seem an obvious requirement and not one where you can afford to cut corners.

Typical issues that arise include where boundaries do not follow the Land Registry's title plan. But in an extreme case, the potential buyer might even spot that someone else is claiming ownership of part of the property.

The case, Trevallion v Watmore, concerned two adjoining properties in Sandown, Isle of Wight. Mr and Mrs Trevallion owned a 1,000 year underlease of 46 Melville Street that had been granted in 1954. That underlease was acquired before compulsory first registration on sale applied to the Isle of Wight and so it was not recorded at the Land Registry.

The premises demised by the lease were an irregular shape and included a triangular piece of land at the end of the garden of the adjoining property, 52 Melville Street. There was a six-foot-high fence between number 52 and the triangular area, which the Trevallions used to store canoes and other paraphernalia.

Miss Watmore and Mr Bell bought 52 Melville Street in 2013. The registered title plan included the triangular area at the foot of the garden but did not mention the Trevallions' underlease. As a result, Miss Watmore did not realise that the triangular area was used by her new neighbours as a storage area until after completion of the purchase. Although she had looked at the garden before the purchase, a magnificent fuchsia concealed the triangular area and the fence.

The provisions of the Land Registration Act 2002 answered who was entitled to use the land. The case turned on the complexities of an overriding interest - a property interest that is binding on an owner of registered land even though it is not mentioned on the register.

The judge had to decide whether the Trevallions' underlease constituted an overriding interest when Miss Watmore and Mr Bell had bought number 52 in 2013. Paragraph 2 of Schedule 3 to the Land Registration Act 2002 provides that 'an interest belonging to a person in actual occupation' is an overriding interest, unless it 'belongs to a person whose occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition' and the buyer 'did not have actual knowledge at the time of the disposition'.

Miss Watmore had carried out a cursory inspection of the garden on her visits, but the 2002 Act refers to a 'reasonably careful inspection' rather than any actual inspection that had been carried out. The judge had inspected the garden of number 52 on her site visit and held that it would have been obvious, if the boundaries had been inspected, that they did not follow the rectangular lines of the Land Registry title plan. Accordingly the Trevallions' underlease took effect as an overriding interest, with the result that their occupation took precedence.

Tim Jones

Tim JonesFRICS

Partner - Head of Rural Division

Tim is head of the firm's Rural Division and of the Cambridge office, although he spends a considerable amount of time in London.  He has over 20 years experience in advising institutional and pri...

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