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JGM, Solicitor
Category: Scots Law
Satisfied Customers: 12183
Experience:  30 years as a practising solicitor.
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I have a problem with selling my flat. The sale is/was due

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I have a problem with selling my flat. The sale is/was due to take place this Wednesday and I gave been notified by my solicitor that the owner of the property above me owns 4meters of my boundary with them. I purchased the flat in 1996 as it is now. I am told that the land registry rules changed in 1999 where all old property, pre 1999, had to be transferred on to the new land registry and comes under the new rules. This property was built in 1880 and made into a garden flat, which I own, and a house above in 1961 and has been sold 5 times since 1961 showing the boundary as it is now. I am told that as I have no right of title I have to pay my upstairs neighbour for this 4 meters of land. My neighbour wanted the flat for his daughter and is being really difficult about this as he says it is priceless to him. Could you please tell me if there is ant time scale that this piece of land would become the rightful ownership of my property. Scottish Law. Also today my solicitor thinks that the windows in my flat do not conform to the properties listed building status as they should be sash and case windows, again the property was bought like this in 1996.
Thank you for your question.

From 1 October 1999 properties in certain land registration districts of the Borders, when sold, are now required to be registered in the Land Register of Scotland as opposed to the Register of Sasines.

As part of that registration process a report is required whereby the title deed boundaries of the property being sold are compared with the actual boundaries as shown on the ordnance survey map. Sometimes the two don't match up. This can be for various reasons. The boundaries could have been wrong from the beginning or they could have changed over time. Only when the occupation extent is tested by doing a comparison with the OS map does this come to light. This is not the fault of your solicitor. The report I refer to is called a P16 report and is only used when a property becomes subject to first registration in the Land Register.

If your boundary is shown to encroach on your neighbour's property then the only way to deal with this is to change the physical boundary or purchase the offending area if the neighbour will sell it.

However, it could be the case that the plan on the deed used for the P16 comparison is wrong and you might want to get a land survey done by a specialist land surveyor who would have access to the property, the OS map and the title deeds with the title plan and a formal bounding description of the relevant area. It is not unheard of for the disputed area to have been put on the land register by the neighbour as part of an earlier registration process yet you have held title and have had occupation for over 10 years thus purifying your right to the land.

Your solicitor should be able to advise you more specifically on these point as he is aware of your property. I can only give general guidance.

As regards ***** ***** the listed status of the building would generally govern the type of windows that could be fitted. This should have been raised when you purchased the property. Your solicitor should be checking the position with reference to Historic Scotland and whether the listing is B or C. C listed properties are usually not a problem as regards windows.

Happy to discuss further.

I hope this helps. Please leave a positive response so that I am credited for my time.
Customer: replied 3 years ago.
Many thanks. The one area that I do not understand is the right to title. My solicitor states that I have no right to title even although we bought the property as it is at the moment in 1996 and previous owners (5) since 1961 when the property was split into 2, had the same boundary as shown in the title deeds plans since then. I have verified this with 2 previous owners and confirmed that this is the case. I have also asked my solicitor if there are time scales as you say, purifying my right to the land. He states that this does not apply as I have no right to title. Could you explain this a little bit more fir me please. My husband spoke with a friend who is also a solicitor and he told him that our solicitor has got it wrong. Just do not know where to turn now. The neighbour will not sell the land.

This is why a land survey may have to be done.

The rule on ownership is that if you have title to property and also occupy it for 10 years or more, your right into the property is unchallengeable.

However, occupation alone is not sufficient without a title. Your solicitor has clearly taken the view that you do not have a title covering that part of the ground. I assume that he has taken that view because of the P16 report obtained from the land register. However, that is not necessarily the case. That is why a land surveyor has to examine your title, the neighbour's title, the ordnance survey map, and any other relevant information including a site survey.

Perhaps you could ask your solicitor for a note on the position as he sees it and I will be happy to look at this and answer further.
Customer: replied 3 years ago.
Thank you so much for your advice. I will ask my solicitor about a land survey. Could I ask how to contact yourself when I receive further information.
Thank you for your response. You can accept my answer and that will have the effect of bringing our present conversation to an end. Once you have heard from your solicitor you can get back in touch and ask a new question and simply ask for JGM to answer and I will be pleased to do so.
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