Hello and thanks for using Just Answer.
I am Al and am happy to assist you with your enquiry.
Unless your neighbour pays off her Mortgage, I'm afraid there is no way that you will be able to legally have the land registered to you. This is because, with all mortgaged land, no transfer or sale of part of it can take place without the Mortgage Lender's consent. Without this consent, the Land Registry will not register the Transfer of the land to you.
As long as a suitable Plan has been drawn up, which appears to have alreaby been done, most Lenders would grant consent as long as it does not materially affect the value of your neighbour's property. I really don't know why your neighbour's Solicitor had a problem obtaining this- most Lenders are approachable and are under a duty to correspond with us Solicitors.
If the above is not possible, the only other thing you can do is to go ahead and encompass the land into your garden by moving your fence. I must say this would not be an ideal scenario, as you wouldn't legally own the land until the period of 10 years has expired and at which point you would have to apply for "possessory title" of the land at the Land Registry. Therefore if you were to sell your property in the next 10 years, you are likely to face a problem in that your Buyers Solicitor would want you legally acquire the land, so you would be back to square one.
I would therefore suggest that you perhaps offer to pay your neighbour a sweetener to get the job done correctly and to perhaps instruct another Solcitor to write
to her Mortgage Lender.
I hope this assists and sets out the legal position.
Thanks for your reply.
I'm afraid each of you need to instruct separate Solicitor's to avoid the possibility of a conflict of interests.
Santander would normally make an admin charge for granting consent- usually around £100. Likewise, your neighbour would have to pay her Solicitor. As you stand to benefit from the transaction, it would be normal and reasonable for you to agree to pay your neighbour's legal fees (likely to be approx £400 plus VAT) and Santander's admin fee, so that she is not out of pocket.
However, if your neighbour is not willing to instruct a Solicitor, you are slightly stumped I'm afraid, as any Solcitor will need to take instructions from her directly. Not sure if you are in the financial position to also pay her say £300-500 for the land, in the hope that she will be prepared to take active action?
I hope this helps.