The Ombudsman's final decision:
Summary: Mrs C says the Council told her she could acquire land to the rear of her house by ‘adverse possession’. She says, as a result of this advice, she built on the land which the Council then sold to her neighbour. She says she incurred expense in building gates and other structures. The Council was not at fault. There is no evidence it gave Mrs C this advice. Its decision to sell the land to her neighbour was in line with its policy.
- The complainant, who I have called Mrs C, says the Council is at fault for:
- Telling her she could acquire land near her house by ‘adverse possession’; and then
- selling the same land to her neighbour; and
- Refusing to allow her to bid on the land herself, and
- Lying to her MP about her actions.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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)
How I considered this complaint
- I spoke to Mrs C and wrote an enquiry letter to the Council. I considered the facts and the relevant law and guidance.
- I sent my draft decision to Mrs C and the Council and invited their comments. I considered Mrs C’s comments then made the final decision.
What I found
What should happen
The Council’s property disposal policy/special purchasers
- The Council has a property disposal policy (‘the disposal policy’). Among other provisions, it states:
For certain types of property open market advertising may not achieve best consideration for example sales of land where there is a ‘special purchaser’ for whom the land has a higher value than for anyone else … where realistically the adjoining land owner is the only potential purchaser or tenant. In circumstances where the Assistant Director of Estates and Property determines that there is a special purchaser a sale may be negotiated direct with the special purchaser without open market advertising taking place. All exceptions will be recorded and retained as Key officer decisions.
- Land registration in England and Wales is now compulsory. Every time a house or piece of property is sold, it must now be registered with the Land Registry which will keep a record of the ownership and other details of the land.
- However, land that has been in the same ownership for many years will not yet be registered. The Land Registry says, ‘Unregistered’ with regards to a land registry search in the UK simply means that the land is not registered with HM Land.
- It does not mean that the land is not owned by anyone, and it does not mean that the address is not valid. It simply means that the Land Registry holds no information or deeds in relation to the land.
- Title deeds relating to land that is unregistered will be held privately by the owner or their mortgage company, as opposed to the Land Registry who maintain title deeds in respect of registered land.
- A person who is not the legal owner of land can become the legal owner by ‘adverse possession’. This means that, if a Person, Person A, enters land and treats it as their own, if the legal owner does not object or assert their ownership or if there is no legal owner, after twelve years, Person A can register ownership. The land will then be legally theirs.
- The Council says that, in 2009, the owner of House A, Mr A, asked if he could buy a small, piece of council-owned verge, Plot A, at the end of House A’s garden. It provided access to his property from the rear. The Council agreed and sold the land to him in October 2009.
- Mr A only bought the verge at the rear of his garden. The remainder of the verge, Plot B, ran along the end of the garden of House B which was owned by Mr B. The Council offered Plot B to Mr B. Mr B declined saying that he could not, at that time, afford it.
- Mrs C and her husband acquired House A in 2013. Mrs C says Plot B was, at this time, covered in rubbish which she cleaned frequently. She says she contacted the Land Registry in 2013 to ask who owned it. The Land Registry said it was unregistered land.
2017, Mrs C’s account
- Mrs C says fly-tipping on Plot B continued. In 2017, she asked the Council to erect a sign to discourage it. She says she spoke to Mr B who told her Plot B was Council-owned land and showed her a letter from the Council to prove it.
- Mrs C says she contacted the Council in July 2017 and spoke to Officer O who told her no one owned the land. She says the next day, another officer phoned her back and told her that, if she maintained the land for 12 years, keeping proof she had done so, she could then claim the land by adverse possession.
- Mrs C says she asked Mr B if he would buy the land as she was fed up with the mess. She says Mr B told her that he wouldn’t buy the land but she could.
- Mrs C did not buy the land but, instead, in summer 2017, built a concreted bin store and installed a stone wall and a gate on Plot B. The day after the work was completed, she says, she received notification from the Council that she would have to remove the gate and bins she had installed as the land had been sold.
- Mrs C contacted the Council and said this was unfair. She says she spoke to a senior manager, Officer P, who, she says, told her she had been unfairly treated and said the Council would allow both parties to bid for the site.
- A week later, Mrs C says, Officer P told her that Mr B was a ‘special purchaser’ and it would sell the land to him.
- Mrs C asked for a review of the decision. The Council upheld its previous decision. After a substantial delay, the Council sold the land to Mr B in February 2020. Mrs C came to the Ombudsman.
2017, The Council’s account
- The Council says it owned Plot B until it sold it to Mr B. It was unregistered land and it held the deeds privately. This is why the Land Registry told Mrs C the land was unregistered. This did not mean it was unowned.
- The Council denies that Officer O told Mrs C she could gain ownership of Plot B by adverse possession. It accepts she may have said the land was unregistered.
- The Council says Mr B contacted them in August 2017 and said he wanted to buy Plot B. As he had previously been offered the plot, the Council decided it should sell it to him. It therefore quickly agreed to sell the land to Mr B. It later wrote to Mrs C asking her to remove the bin store.
- Officer P denies he told Mrs C he would invite bids on the plot. He says he said he would review her case. He says he felt it would be better if Mrs C spoke directly with Mr B as it seemed to be a neighbourly dispute which he did not want the Council to become involved in.
- He says inviting bids would also have been ‘contrary to the disposal policy’ because it ‘would leave an aggrieved party and the Council would profit. This did not seem a “fair” result’.
- Mrs C wrote to Officer P in early October 2017 saying she felt she had been unfairly treated. She said she had spent large amounts of money on building work she had now been asked to remove.
- Officer P wrote to Mrs C in early October 2017 and told her the Council had offered Plot B to Mr B in 2009. Although he had refused, Mr B had contacted the Council in August 2017 to say he now wanted to buy it. Officer P said, ‘While I can express sympathy, there is little I can do regarding the history. We have two options here. Either, we continue with the Heads of Terms with your neighbour, or we invite both of you to make a proposal. While that may seem to be fairer, it will no doubt raise the price that the Council [would] receive.
- The Council corresponded with Mr B in October 2017. It attempted to negotiate a compromise agreement but this was not possible. Mr B insisted he should have the right to purchase Plot B as it adjoined his garden.
- Mrs C wrote to Officer P in November 2017 saying she had told Mr B she would carry out works on Plot B and had discussed purchasing the land with him.
- In January 2018, a Council legal officer wrote to the property team saying ‘from the comments made by [Mrs C], it appears that she has contacted the Land Registry and misunderstood the land being unregistered to mean it does not have an owner. While it is unfortunate she has incurred expense in fencing off the land, this is ultimately at her cost as the land does not belong to her. It is not for the Council to give Mrs C any advice. However, she is trespassing on Council land. By maintaining the land it may be that she intends to claim ownership at some point in the future’.
- The legal officer set out three options for the Council:
- Send a brief letter to Mrs C explaining the Council owns the land and asking her to stop trespassing;
- Proceed with the sale to Mr B;
- Register the unregistered part of the land to secure ownership then decide how to proceed.
Was there fault causing injustice?
- The Ombudsman makes his decisions on evidence. We cannot uphold a complaint unless we have seen evidence to support the complainant’s claims. If a complainant can show it is more likely than not that their version of events is correct, we can uphold their complaint.
Officer O’s advice
- Mrs C says Officer O told her that the land did not belong to anyone. The Council says it cannot believe Officer O would have done so because it was not true and Officer O is an experienced officer. There is no evidence to support this part of Mrs C’s complaint.
- There is no evidence either, to support Mrs C’s claim that an officer phoned her to tell her she could gain adverse possession after 12 years.
- The Council says it decided to sell the land to Mr B because he was a ‘special purchaser’. This was because ‘he had the adjacent interest. Mrs C had an adjacent interest only through the sale of the original verge. The decision was to honour the original offer. A sale to a third party would land lock Mr B’s garden’.
- The Ombudsman will not find fault with a council officer for making a decision which bears in mind the relevant facts and is in line with the council’s policies even if they could have made a different decision in the same circumstances.
- It is clear from an email of October 2009, that Officer P was motivated by a desire to treat both parties fairly. His decision was in line with Council policy as Mr B was a special purchaser. The Ombudsman cannot find fault with it.
Cost of works
- Mrs C says she spent thousands of pounds on works on Plot B. She says she was encouraged to do this by Council officers. I have seen no evidence that this was the case. I cannot find fault.
Conversations with Mr B
- If Mr B told Mrs C that he agreed to her buying Plot B, this was not the Council’s fault. There is no evidence that the Council was involved in or even aware of these discussions. It cannot be at fault for any undertaking given by Mr C.
- In conclusion, the Council acted properly and took decisions open to it. I do not find fault.
- I have decided the Council was not at fault. I have closed my investigation.
Investigator's decision on behalf of the Ombudsman