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wingrovebuyer
wingrovebuyer, Senior Solicitor
Category: Property Law
Satisfied Customers: 737
Experience:  Bachelor of Laws (Honours); PG Diploma in Law; Member of ALA; 9 years' experience
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Caution Against First Registration - Application Refused Dear

Customer Question

Caution Against First Registration - Application Refused

Dear XXXXX,

The LR have refused to register a Caution against the land – I am finding it difficult to fathom their legalese, so I am simply transcribing it here, in the hope you can explain it in English and more importantly tell me if they are correct or how to challenge them:

“[…] an applicant for a caution against first registration must have a claim to be entitled to an interest affecting a qualifying estate s15 Land Registry Act 2002.
Such interest as you may have in the land is as a person claiming to be in occupation by adverse possession, for a period of time insufficient [<12 years] to make a claim for registration, and you do not have an interest in the land. Only a person with an interest in the land may apply [for a caution against first registration]”

Effectively it is stating as “only” adverse possessor I do not have the right to register a caution because I do not have an “interest” in the land – is it correct that an APer has no “interest” in the land by way of AP?

They start the 2nd para stating “Such interest as you may have” and then later state [as an APer of <12 years] “you do not have an interest in the land” – which is it? Do I or don’t I have an interest in the land as APer?

They seems to contradict the fact, that after a visit to the LR when I heard the Council were applying for first registration of the tip of the land we are in AP of – the LR has written to me to confirm that they will notify us of the outcome of any deed examination “before the application is completed” – ie: as APers we have enough ‘interest’ in the land to warrant notification before the application is completed“

They seem to be treating me as having sufficient interest in the land to be warned of a first application for the tip of the land, but not as having sufficient interest to register a caution for notification of any future first registrations for the bulk of the land. One of these positions surely must be wrong – which one? And why?

PS: Because they say they have now found a 4th deed (1927 repurchase) for the tip of the land, they still could have grounds for a claim of criminal and/or civil damage (we felled ~6 self-sown trees there). This said, they did say we could work the land as we wished if the deeds they gave us showed they were not the owner – which is what they did do – until they found they had made an error (Their mistake, not ours).
Maybe what I should try – in order to resolve this situation – is to offer to buy this tip of land. Alone, the best you could do was get a triangular shaped house with a weird garden on it. So it may not be worth much on its own (though could be when merged in with the bulk we are APing) – and on its own, I doubt the Council will bother developing it as they don’t get out of bed for anything less than a multi-million pound deal, which this could never be by a long, long way. (2+ Bed Houses here cost only £50k-£70k each) If they could agree to sell me it, this could deal with all outstanding criminal and civil action – does this seem a good approach?

Andrew
Submitted: 3 years ago.
Category: Property Law
Expert:  wingrovebuyer replied 3 years ago.
Andrew - Land Registry knows that possession of land is an important indicator of an interest, so they will notify anyone in possession of land of an application affecting it, where the interest of the possessor is unknown but they are aware of the possession. However, possession will not always entitle you to a caution. I recall thinking earlier that a caution probably wouldn't be granted, but you had been told it would. Either way, anyone applying to register land is obliged to notify Land Registry of any adverse interests, including adverse possessors - so you should get notice of any application anyway and if the council doesn't notify Land Registry it can be prosecuted.

With regard to buying the land, could you still use the tip if you were eventually evicted from the rest of the land? If not, then It's probably not worth it at this stage. If it could be accessed and used as a stand alone plot, maybe buying it wouldn't be a bad idea. However, I still think the criminal damage charge is nonsense, especially when the council didn't object to you when they had the chance to do so.
Customer: replied 3 years ago.

The penny has just dropped - I could not understand why the Council took the criminal damage action they took and why the Police finally took them seriously.


 


I have just realised it is because the Property Solicitors and Property Surveyors at the Council are incompetent, negligent, inept, apt to make false assumptions, chaotic, running around like headless chickens and just plain stupid, stupid, stupid... (and worse)


 


The person who wrote the “Witness Statement” is one of the Council’s Property Solicitors (Legal Officer) – she is supposed to be an expert in “Law” and “Property” – I on the other hand am supposed to be just a stupid Joe.


 


Neither the Property Solicitor, nor the Property Surveyor of the Council have been down to see the site for themselves – this is evidenced in their correspondence and actions.


 


The Property Solicitor wrote the Witness Statement – but in fact she has witnessed nothing herself. She had simply collated reports from other people. As she was not a witness to any of it, she should never have given the witness statement herself – and as a solicitor she should have known this. Only the people who did witness things should give such “witness” statements.


 


She also lied in her witness statement. One week before she made the witness statement, her team of solicitors had provided me with 3 deeds for a small “tip” of the land – purchase, sale and sale. In her witness statement (one week later), she only refers to and provides the 1st of these deeds – the purchase deed. As she is part of the team of solicitors that provided me with 2 further and subsequent sales deeds, she had to have had them and known of their existence. And as a solicitor, she had to have known that she had to declare such highly relevant documents – she did not – what sanctions are there for this?


 


But what has just occurred to me is a larger, more idiotic mistake, for property experts (solicitors and surveyors) to make – they made a mistake about which land was which – because they never bothered to come down and see things on the ground for themselves.


 


Imagine the land we have occupied being divided in 3 sections, left, centre and right.


(1) Left section: unregistered, but deeds show is Council’s


(2) Centre section: Unregistered, Council have no deeds (occupied and partly cleared by us)


(3) Right section: Unregistered, Council have no deeds (occupied and partly cleared by us)


But


(4) To the right of the Right section is a piece of land where 4 houses were before they were knocked down by the Council. This land belongs and is registered to the Council.


 


On the LR maps, these 4 plots where houses once were, are still showing as if houses are still there.


 


On the ground, these 4 plots are 1 piece of grassland with a kickrail around it.


 


To the right of (4) there are still buildings (always rows of terraced houses here)


 


Because they have never come down to see the land for themselves, they have therefore assumed that a section of land without houses, next to the last remaining row of houses is theirs


 


Going from the map, this would therefore be (3)


 


However, going from seeing things on the ground, you can see it is (4)


 


We were working on (3) when the policeman came and took our tools and stopped us under threat of arrest. He was working under the instructions of someone on the phone, who out of ignorance, was telling him that (3) was (4) and so we were working on land owned by and registered at the LR as owned by the Council


 


This is why everytime I tried to point to (4) as being the land registered to the Council, the Policeman would point to (3)


 


And this is why, when we made a FOIA request for deeds of (3) (unregistered), the Council refused to provide any paperwork about this land, because they thought I was referring to (4) which is publically registered at the LR


 


Actually, (4) is made up of 4 houses and 4 gardens – but only 4 houses and 2 (TWO) of the gardens are registered at the LR – my 1st FOIA request had outlined sections (1), (2) & (3) as well as the leftmost garden of (4) not registered at the LR – when they refused to provide the documents for any of the land of the 4 houses because they are registered at the LR, I concluded that they did not realise that 2 of the gardens are not registered at the LR and so do in fact come under FOIA requirements. It actually turns out that they refused to provide any information about these 4 houses and their gardens, because they though (4) was (3) – all because they never bothered to come down and see things on the ground for themselves.


 


Actually there is less excuse for them that this, because their own GIS (mapping) System shows (3) as not belonging to the Council and 4 houses and only 2 gardens of (4) as belonging to the Council – ie: they could have seen this balls up for themselves very easily from the comfort and warmth of their own overly-plush offices!


 


And, it would seem, that the letter I told you about, from the Council, acknowledging that they did not own (2) and (3), actually only acknowledges that they don’t have deeds for (2), because they think that (4) is (3) and so is already registered to them…!!!


 


On Thursday I sent them a letter requesting:


 


1) That they provide us (under a 2nd FOIA request) with all documents to do with (4) – these 4 houses and 4 gardens. I informed them that not all the land was registered publically at LR and that LR had informed me that even when it is, they do not keep all deeds, but often return many – so not all deeds for registered land are necessarily held publically at the LR… (and so exempt from FOIA requests)


 


2) That they confirmed that patches (2) and (3) are the lands they are saying that they do not have deeds for. At the time I wrote this letter, the penny had not dropped that they thought (4) was (3).


 


I am sure that the penny has dropped now with them, that they have raised the alarm and are all, once again, running around like headless chickens!


 


I had also asked them to correct misleading information they had given to the Police – ie: that (4) had anything to do with the complaint (we have never occupied, possessed or done any work on (4)) and that they accepted that (2) and (3) did not belong to them (or that they did not have any deeds to show it belonged to them)


 


QUESTIONS


 


1) Can we make a complaint against the police for stopping us working on (2) and (3) and get them to provided us with a written assurance that we will not be hindered from doing this lawful activity again in the future? And can we demand our tools back?


 


2) Can any action be taken against the Council for making a false witness statement?


 


3) Could we apply for an Injunction against the Council for trying to stop us working on the land, when they have no rights to do such?


 


I think the Legal Aid criminal solicitors, who attended the Police station with me for formal questioning, do not want to bother helping me any more, as they do not see this case going anywhere (no profit) – they have not answered any of my emails and do not take my calls or return my messages!


 


Look forward to oodles of your bounteous wisdom as always


 


Andrew

Expert:  wingrovebuyer replied 3 years ago.
Hi Andrew.

I think you can demand your tools back from the Police, I haven't a clue on what grounds they can refuse to return them if they're not going to charge you with anything. I wouldn't make any complaints about the police at this stage - they are probably stuck between a rock and a hard place on this. Best to keep them on side as much as possible.

The witness statement hasn't actually been used in any judicial proceedings yet, so I don't think you can take any action regarding it yet. However, knowingky making false statements in a WS used in proceedings will amount to perjury if it can be proven. It might be a good idea to write to the council stating why you think the WS is flawed, but also perhaps you might leave it and then let them use it in any proceedings, thereby committing perjury, which you can then throw at them.

I don't think you could get an injunction to stop the council harassing you about this, but you might be able to apply to the court for a declaration that the council does not own parts 2 and 3. This would force the council to show its hand, and if the court said there is no evidence they own 2 and 3, then they ought to back down.

David

Customer: replied 3 years ago.

**************************************

How would I apply to the Court for a Declaration that the Council do not own parts (2) & (3)?

**************************************

Specifically why would I not be able to apply for an injunction to prevent the Council making groundless complaints of criminal damage to the police, sending letters to all the neighbours with false and inflamatory information on them etc? There is ample evidence

 

I think I will still make a complaint against the police - I will not make it personal - but my contractors do have the right to work without the threat of being harrassed (having their tools taken, having statements taken, being threatened with arrest and in the future, maybe even being arrested). I have made complaints to the police about police actions in the past. It draws a line in the sand and has got them to behave better as a result. I do need written confirmation that we will not be stopped again unless someone can 1st provide convincing evidence that they own the land. I would like them to recognise that the Council do not have deeds for the ground (2) & (3) and so will not be able to report crimes on these lands. I am unlikely to get any such written assurances without a complaint. It has not soured relations in the past.

They are keeping the tools, because the Police and/or the CPS have still not decided to drop the case - they are still labouring under the false apprehension that (4) is (3) and so the Council own the land which is registered at the LR. The Council have not yet disabused the police or CPS of this impression and they refused to believe my assertions that they identified the wrong parcel of land.

The complaint against the police could also, therefore, serve as a process to disabuse the Police of this perverse notions

 

I do not think there is now any chance that they (though I will if they proceed) use their witness statement in any court action - because I am sure that they now realise how wrong they got so many facts - after all I did write them a letter asking them to point out on a map what land they thought they did not own (and I suggested a line) and I sent them another plan identifying the real area for (4) and calling it by the correct addresses of the 4 houses (108-114 Parkhill Ave). So they must already know how wrong they got things - but have still to do anything about it (=indifference)

 

And what do you think about making complaints to the Council about the local councillor and council staff involved?

I think it could help stave off hopeless criminal and civil action that will waste even more of my time and cause even more friction than complaints to the Council.

 

Andrew

 

Expert:  wingrovebuyer replied 3 years ago.
Thanks for the plan Andrew - it is helpful. Regarding the injunction, it's simply not something I think an injunction is appropriate for. You could complain to the council about their treatment of you, go through their procedures and then if you're still unhappy go to the Local Government Ombudsman. I would also report this Councillor to the Council's Standards Board. Screaming at you in this way will clearly be a breach of his Code of Conduct. He is not meant to be aggressive or harassing - a clear breach for which he will be reprimanded as a minimum.

As for the court declaration, I'd ask your solicitors to do this for you, but you can get the application papers for the High Court yourself. On them, it asks you what you're seeking - here you ask for a Declaration that the Council does not own the Land. If the court accepts jurisdiction, the process should effectively wash out the Council's position and, if they are shown not to have ownership of the land, they can't then keep harassing you because it's been shown they have no right to complain to you.
Customer: replied 3 years ago.

I have scoured Google for a "High Court Declaration form" or words like this, but have found none.


Can you give me the form number or a link to where I can get the form. I wish to look at it so I can decide.


Also, any links to relevant Practice Guide or the like would be useful too


 


I will submit a complaint against the councillor - though I note that the postal address for the Standards Committee is the City Solicitors - the people who generated most of the false information and aggravation in the first place!


(The Standards Board was abolished in 2010 when the Conservatives sought to get rid of a swathe of "Quangos")


Thanks


Andrew

Expert:  wingrovebuyer replied 3 years ago.
Hi Andrew. I think you only need to use a standard claim form, but I believe that type of claim would be heard in e High Court. Google "high court claim form" and there's quite a bit of official information and links to the forms. Best wishes!
Customer: replied 3 years ago.

I am sorry, but this is wholy insufficient information for my needs. I need to know:


- Specifically which forms to use


- Specifically which pre-action protocols to follow


- Specifically which information and evidence I need to provide


- Specifically which steps are involved in this process.


I have been unable to find anything other than a large sea of vague info about this - noone of which refers to Court Declarations.


The High Court have said they cannot give me any guidance - that I must find someone like yourself to answer this question.


However, I fear from the many times I have tried to ask you this and your responses that this is not your area of experience.


If this is wrong I look forward to your specific response - I will happily give a larger than normal bonus for this. Otherwise I will repost the question on the website in the hope that someone else can give me the initial guidance I need if you are unable to


Thanks as always - you have been great on all other matters so far and I appreciate it - but I do need someone who can be as specific on Court Declarations as you have been on Adverse Possession


Andrew

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