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Sheffield City Council (17 010 689)

Category : Other Categories > Land

Decision : Upheld

Decision date : 28 Mar 2018

The Ombudsman's final decision:

Summary: Mr and Mrs F complain the Council wrongly advised them about the sale of land to a third party. The Ombudsman has found fault which caused them uncertainty and a lost opportunity to bid for the land. The Council has agreed to make a payment to Mr and Mrs F and review how it implements its policy.

The complaint

  1. The complainants, whom I will call Mr and Mrs F, complain about the way the Council dealt with the sale of land next to their property. In particular, they complain the Council:
    • wrongly advised them they could purchase a piece of land next to their property
    • wrongly advised them the land was being claimed by a third party as an adverse possession
    • did not inform them the Council had agreed to sell the land to another purchaser, causing them uncertainty and distress
    • failed to respond to telephone calls and did not keep them informed of the situation
  2. Mr and Mrs F say the situation has caused them distress, anxiety and uncertainty.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I spoke to Mrs F about the complaint and considered the information she sent. I considered the Council’s response to my enquiries and:
    • The Council’s Disposals Policy and Leader’s Scheme of Delegation
    • Land Registry, Practice Guide 4: adverse possession of registered land
  2. I sent Mr and Mrs F and the Council my draft decision and considered their comments.

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What I found

  1. Local authorities have powers under the Local Government Act 1972 to dispose of land. It is government policy that councils should dispose of surplus land wherever possible for the “best consideration” reasonably obtainable. In most cases this means all interested parties should be allowed an opportunity to bid.
  2. The Council’s Disposals Policy says in some circumstances it may be beneficial to offer direct negotiations with a “special purchaser” without marketing the land. A special purchaser may include, for example, a sitting tenant or other party already having a proprietary interest in land, or an adjoining landowner. The policy does not say how the Council should deal with more than one special purchaser.
  3. The land is sold to a special purchaser by “private treaty” which is a time-limited process. The policy says if other offers are received before the private treaty negotiations have finished, the Council must invite best and final offers from all prospective purchasers.

Adverse Possession

  1. Schedule 6 of the Land Registration Act 2002 allows a person to apply to become the registered owner of land they do not own. The person must show sufficient evidence to prove they have been in uninterrupted possession of the land for at least 10 years.
  2. If the existing registered owner opposes the application it will be rejected, unless (amongst other reasons) in certain circumstances “the person has been in adverse possession of land adjacent to their own under the mistaken but reasonable belief that they are the owner of it.”
  3. If the application is rejected but the person remains in adverse possession for a further two years, they can reapply and will be registered whether or not anyone opposes the application.

What happened

  1. Mr and Mrs F decided to buy a house that had a driveway shared with the neighbour and two garages on the driveway. Before completing the purchase, in May 2016 Mrs F asked the Council who owned the driveway. She told the Council about the garage on the neighbour’s side of the driveway.
  2. The deeds showed the driveway was owned by the Council with rights granted and reserved to Mr and Mrs F’s house to pass and repass.
  3. Mrs F told the Council she was interested in buying the driveway so she could install a gate for the safety of her children. The Council told Mrs F it did not wish to sell as it formed part of a possible building plot. It would consider the possibility of leasing it to her as a garden extension.
  4. The Council investigated ownership of the garage on the neighbour’s side. It found it had been built by Mrs F’s neighbour and was not owned by the Council. The Council was therefore unable to sell the garage to Mr and Mrs F.
  5. On 27 June 2016 Mrs F complained about delay in responding to her query. Mrs F says Officer X then called her and told her that, if the Council decided to sell the driveway, all parties would be informed and she would be able to bid for it. The Council does not have a record of this conversation.
  6. A week later Mrs F complained that Officer X had promised her the driveway but had since sold it to someone else. Mr and Mrs F completed the purchase of their house on 8 July 2016.
  7. The Council’s response to Mrs F’s complaint confirmed the driveway had not been sold. It had had to contact Mrs F’s neighbour as they also used the driveway and may have a claim of a prescribed right to use it. The Council said it would “do its utmost to keep you informed and up to date at every opportunity, but please be aware that the process can take a minimum of 3 months, sometimes with periods of time where the matter is out of our hands.”
  8. The Council wrote to Mr and Mrs F’s neighbour. He said he had believed he owned the driveway, he had had use of it for over 25 years, and would consider making an adverse possession claim.
  9. Mrs F again asked for an update on 9 August 2016. The Council says Officer Z called Mrs F and informed her “there is a third party with a potential claim that we cannot discuss and that we must address before any disposal [to Mrs F] is investigated.”
  10. The Council considered its position in response to the potential adverse possession claim. It asked Mrs F’s neighbour to provide evidence of continual use of the driveway. The Council decided that if this evidence was forthcoming it would sell the driveway to the neighbour as a special purchaser, to avoid the adverse possession claim. The Council considered the neighbour had a greater claim as a special purchaser because Mr and Mrs F did not appear to have an adverse possession claim. It subsequently took until April 2017 for the evidence to be provided.
  11. Mrs F told the Council she had problems accessing her property as the neighbour parked on the driveway. Officer Z visited the site and met Mr and Mrs F. He took measurements and explained the access rights. He noted Mr and Mrs F’s hedge was overgrowing part of the driveway and contributing to the access problem. He said he could not discuss third party matters but would inform them when possible.
  12. Mrs F says on 28 September 2016 the neighbour told her he was buying the driveway. She says he implied he had influenced Officer Z. In October 2016 the driveway was registered by the Council, including Mr and Mrs F’s access rights in the Title.
  13. In December 2016, the Council’s July 2016 complaint response letter was returned undelivered. It re-sent it to Mr and Mrs F.
  14. In April 2017 the Council received sufficient evidence from Mrs F’s neighbour that he had had use of the driveway for over 10 years. The Council decided to offer the driveway for sale to the neighbour as a special purchaser. It agreed terms with the neighbour in July 2017.
  15. In August 2017 Mr and Mrs F found out the neighbour was selling his house. Mrs F told the Council and said the completion date was 1 September 2017. In response to my draft decision, Mrs F sent evidence the sale was completed on 31 August 2017.
  16. On 4 September 2017 the Council completed the sale of the driveway, including Mr and Mrs F’s rights of access in the Title. In response to my draft decision, the Council sent evidence that this sale was to the neighbour.
  17. Mrs F complained to the Council. She said Officer Z had told her she would be made aware when the adverse possession claim had been resolved and the plot came up for sale. This had not happened.

My findings

  1. I have considered each part of Mr and Mrs F’s complaint below.

The Council wrongly advised them they could purchase a piece of land next to their property

  1. Mrs F says Officer X told her at the end of June 2016 that she would be able to buy the driveway. She stated this in an email to the Council a week after the call. The Council has no record of this conversation.
  2. The Ombudsman needs to make a decision based on the evidence available. We need to decide what weight to give to each piece of information. If the evidence for one party outweighs the other, then a decision can be reached on the balance of probability. Sometimes it is not possible to reach a safe decision about what happened. This is a situation where I do not believe the Ombudsman can reach a safe conclusion about what Mrs F was told about being able to buy the driveway.
  3. I therefore cannot find that the Council wrongly raised Mr and Mrs F’s expectations, by agreeing to sell to them, then selling to the neighbour.
  4. Even if Mrs F was told this in June 2016, the situation changed once the neighbour told the Council he may make an adverse possession claim in August 2016. I consider how the Council dealt with this in paragraphs 36 to 42.

The Council wrongly advised them the land was being claimed by a third party as an adverse possession

  1. I do not find fault by the Council. There is evidence the neighbour told the Council he was considering making an adverse possession claim. He had believed he owned the driveway and had used it for at least 25 years. Although it sought further evidence of continual use, the Council was right to consider the neighbour may have a valid adverse possession claim and inform Mrs F of this.

The Council did not inform them it had agreed to sell the land to another purchaser causing them uncertainty and distress

  1. The Council’s policy allowed it to decide the driveway was surplus land that could be sold. It was entitled to decide Mrs F’s neighbour was a special purchaser as he was an adjoining land owner, had a proprietary interest in the land as he had built the garage, and had a potential claim for adverse possession.
  2. It was therefore not fault for the Council to have direct negotiations with the neighbour. I have seen no evidence a time limit was set for the negotiations.
  3. In response to my enquiries the Council accepted Mr and Mrs F could also have been considered special purchasers. Its policy contains no guidance about how to deal with two special purchasers. My initial view was that it was therefore unclear what information could be shared or whether direct negotiations precluded other bids being made by a second special purchaser. In response to my draft decision, the Council said it “if it had to invite bids from all potential special purchasers this would remove the advantages of having a special purchaser policy and the Council would be better openly marketing all land”.
  4. The Council was aware of the possible adverse possession claim by the end of August 2016. It decided that, assuming sufficient evidence was provided, its preference was to sell the land to the neighbour, but it did not tell Mr and Mrs F this. It told Mrs F there was a third party claim that was being considered and it would come back to her once that was resolved.
  5. Mrs F understood this to mean that once the claim had been resolved, she would be given an opportunity to bid. I find the Council could have prevented this misunderstanding by being clearer with Mrs F.
  6. I recognise there are issues of confidentiality, but Mrs F was aware the neighbour had a claim to the driveway and he told her he was trying to buy it. I therefore can see no reason why the Council could not have confirmed to Mr and Mrs F in September 2016 that it intended to sell the driveway to a third party if it received sufficient information. I accept the Council told Mr and Mrs F it was dealing with a third party claim but I find it was fault not to tell them it was intending to sell.
  7. The Council’s sale by private treaty policy says “If further offers are received for a property prior to negotiations with a prospective purchaser reaching a mutually acceptable conclusion, the Negotiating Officer is required to invite final and best offers by an appropriate date from all the prospective purchasers who demonstrate an ability to finance the proposed transaction.” I therefore consider if the Council had told Mr and Mrs F it was intending to sell to a third party, they could have put in a counter offer. The Council may then have had to invite best and final offers from both parties.

The Council failed to respond to telephone calls and did not keep them informed of the situation

  1. The Council has accepted it did not keep Mr and Mrs F informed and has apologised for this. I note there was frequent contact by Mrs F and it would not be have been possible for the Council to respond to every contact.

Did the fault cause injustice?

  1. Mr and Mrs F continue to have rights to pass and repass over the driveway. In this respect they are no worse off than they would have been if the Council had not sold the driveway.
  2. Mrs F says she would not have completed the purchase of their house if they had known they could not buy the driveway. As I have said in paragraph 32, I can reach no finding on this. In addition, I cannot say that Mr and Mrs F would have been successful in buying the driveway if they had been given an opportunity to bid.
  3. However, I consider the lack of clarity from the Council has caused Mr and Mrs F distress, anxiety and uncertainty. The situation continued from May 2016 until September 2017. They also lost an opportunity to bid for the driveway. Mrs F has also been put to avoidable time and trouble in pursuing the matter, as the Council could have clarified the position in September 2016.

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Agreed action

  1. The Council has already apologised to Mr and Mrs F for not keeping them informed. I welcome this. However, I consider there is further injustice, as identified above.
  2. To remedy this the Council has agreed to:
  3. Within a month of my final decision:
      1. Apologise to Mr and Mrs F for the uncertainty caused by not confirming it was intending to sell to a third party
      2. Pay them £300 to acknowledge the lost opportunity, distress and avoidable time and trouble this has caused.
  4. Within three months of my final decision:
      1. Confirm it has reviewed how it implements its policy with regard to special purchasers, sets clear timescales for negotiations and is clear in explaining the disposal policy and process to other interested parties who express an interest in land

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Final decision

  1. The Council failed to tell Mr and Mrs F it was selling land to a third party. This caused uncertainty and they lost an opportunity to bid for the land.
  2. The Council has agreed to my recommended actions and I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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