Independent Complaints Reviewer for Land RegistryAnnual Report 2012/13
Large printPlease contact the ICR office if you require a copyof this report in large print.
Other versionsPlease contact the ICR office if you require a copyof this report in Braille or audio, or in otherlanguages.
Further informationFull details of the service that the ICR provides canbe found in our booklet, Seeking a fair resolution,which can be downloaded from the ICR’s website atwww.icrev.org.uk
Independent Complaints Reviewer for Land RegistryAnnual Report 2012/13
1
Contents
1 Introduction2 The ICR office3 Facts and figures4 Casebook
1 Introduction
Elizabeth A Derrington
All effective complaints procedures provide for asecond opinion from someone external andimpartial. As Independent Complaints Reviewer(ICR), I provide this service for Land Registrycustomers. Each customer who reaches the end ofLand Registry's internal complaints process isinformed of the option of independent review. If thecomplaint is referred to me, I look afresh at thewhole situation, to identify where the problemstarted and whether something needs to be doneto put things right. My aim is to bring positive resultsfor customers and also for Land Registry – byrecommending practical steps to resolve complaintsfor individuals and also helping Land Registry usecomplaints to drive service improvements for futurecustomers.
This report describes the work and achievements ofthe ICR office during 2012/13, some of the issueswe have investigated and the outcomes we haveachieved for Land Registry customers.
Land Registry, with its sophisticated database ofinterests in land, plays a vital part in supporting landownership, making it easier to buy and sell property.Customers often do not realise, however, that LandRegistry's role is very specific and relatively limited.It records who owns each registered property andmany of the rights and other factors affecting theproperty. However, Land Registry, unlike itsopposite number in some other countries, is notresponsible for keeping measurements of eachregistered title or for policing boundaries and rightsof way.
When I investigate a complaint, I often find that thecustomer did not fully understand Land Registry'srole and what it could and could not do and, as aresult this led to unrealistic expectations and seriousdisappointment when the expectations were notmet. My findings in individual cases haveconsistently drawn attention to Land Registry'sresponsibility to make sure that customersunderstand its role and do not expect help that itcannot provide – though I recognise that this is notstraightforward as the law relating to landregistration is extremely complex. It is veryencouraging, therefore, to be able to report realprogress in this area during the last 12 months, withthe publication of clearer and simpler information forcustomers on a number of important topics. I alsowarmly welcome Land Registry's active involvementin the development of the website GOV.UK whosemission is to make 'simpler, clearer, faster'
Independent Complaints Reviewer for Land RegistryAnnual Report 2012/13
3
information available to the public on a whole rangeof public services.
My experience of working with Land Registrycustomers has led me to believe that problemsabout property are among the most distressing thatpeople have to deal with. Individuals can becomeextremely preoccupied with the issues affectingtheir land and may spend a great deal of timeresearching the background and pursuing theirarguments by all available routes. Sometimes it isvery hard for such individuals to recognise whenLand Registry has helped as much as it can, andthat further correspondence is only likely to causeextra frustration and upset. It is very important thatLand Registry should be responsive to itscustomers, but it is equally important, when it hasdone what it can to assist, for it to bring thecorrespondence sensitively to an end, explainingany other options for pursuing the matter. I continueto see cases where correspondence goes on toolong, raising unrealistic expectations for thecustomer, and using Land Registry resourcesunproductively.
In terms of productivity and timeliness, I am pleasedto report that my team has addressed the concern Iraised in my report for 2011/12. During that periodwe fell considerably short of our 26-week target forcompleting reviews; on average each case took justover 40 weeks to complete. Many of our casesduring 2012/13 were complex and challenging andrequired very careful analysis in order to reach firmconclusions so I am especially pleased to reportthat the average time taken to complete theseinvestigations was under 22 weeks which was –well within our target period.
Reducing the time taken to complete reviews is partof our commitment to continuous improvement. Wehave also improved the review process, providinggreater involvement for customers together with aclearer sense of progress from referral, to agreeinga factual summary, to providing draft and finalreports. In addition we have updated and simplifiedthe information on our website. Plans for the next12 months include exploring new ways ofpresenting our findings – getting away from purelywritten reports and engaging more directly with ourcustomers.
The number of new complaint referrals receivedduring 2012/13 was very much lower than usual.This would have been excellent news if it had beena direct result of Land Registry’s success inresolving more complaints through its internalcomplaints procedure. However, there were signsthat this was not the case. In several cases that didreach us, we found that Land Registry's internalcomplaints procedure had not been fully followedand that customers had not received informationabout the option of independent review by the ICR.This left customers confused about how to pursuetheir complaints. A recent review by Land Registryof closed cases confirmed that in a significantproportion the option of independent review had notbeen offered. Action has now been taken toaddress the issue. This should restore a clearcomplaint pathway for customers and also ensurethat Land Registry has the benefit of the vitalfeedback and learning points that complaints offer.
More information about the outcome of complaintsis given later in this report. The headlines, however,are that just over a third of complaints were upheld
Independent Complaints Reviewer for Land RegistryAnnual Report 2012/13
4
fully or partially, and that I made 27recommendations to Land Registry either forindividual redress or for systemic action to improvecustomer service and avoid mistakes beingrepeated. Areas where I suggested serviceimprovements included helping customersunderstand Legal Services Commission charges,providing information on land registration for parishcouncils, and promoting consistency of approachwhen referring disputes to the Adjudicator for HMLand Registry.
If complainants are not satisfied by my conclusionsthey may refer their complaints to the Parliamentaryand Health Service Ombudsman (PHSO). The mostrecent figures available from PHSO indicate thatseveral cases were referred for review during2012/13 but that none was accepted forinvestigation. This was because PHSO was satisfiedthat the issues had been fully addressed by the ICR.This represents encouraging and authoritativevalidation of our work.
It is vital for me to maintain my independence fromLand Registry. My office is quite separate and thereview process is designed to demonstrate fairnessand objectivity. At the same time it is important forme to keep up to date with developments at LandRegistry, particularly in relation to customer serviceand strategy. I also see it as part of my role toensure that Land Registry staff across theorganisation are aware of the ICR office, what wedo and how we go about it. During the last 12months I have met Land Registry’s Executive Boardto update it on complaints issues, and I havespoken at a meeting of ICREST (the ICR Evaluation& Study Team), the cross-departmental group
responsible for overseeing implementation ofrecommendations made in my reports. In addition Ihave launched a series of workshops for staff whowork in customer teams to give an insight into myapproach and working methods. I have beenimpressed by the customer care and understandingdemonstrated by the staff who attended and theirstrong commitment to service delivery. Feedbackhas been very positive and the workshops willcontinue during the current year with the aim ofvisiting all Land Registry offices by the end of 2013.
It is a privilege to have the opportunity to use one'sexperience to contribute on a broader stage and Iwas proud to be elected in April 2012 to theExecutive Committee of the OmbudsmanAssociation for Britain and Ireland. I am currentlyworking with colleagues on a project to set a newvision for the association. My own particularinterest, as part of this ambitious agenda, is to buildon two recent research projects on effective redressmechanisms and their role in administrative justice(see Putting it Right (Administrative Justice andTribunals Council July 2012) and Designing Redress(Public Law Project October 2012)). The ICR officecontributed to both projects, and the resultingreports highlighted our distinctive strength inunderstanding customer concerns and also inpromoting customer service improvements.
Finally I should like to thank the staff in the ICRoffice for their hard work during the year, and torecognise in particular the contribution of SherylBates who has returned to work in Land Registry’sNottingham Office following a five-year secondment.At the beginning of March we were delighted towelcome Chris Jackson to replace Sheryl as Senior
Independent Complaints Reviewer for Land RegistryAnnual Report 2012/13
5
Investigation Officer. I very much look forward toworking with Chris, and also with Denyse St Roseand Vicky Applegate, the other members of myteam during 2013/14.
Elizabeth DerringtonIndependent Complaints Reviewer for LandRegistryMay 2013
Independent Complaints Reviewer for Land RegistryAnnual Report 2012/13
6
2 The ICR serviceOur missionTo seek a fair resolution of complaints.
Our purposeTo provide a free, effective and impartial complaintsreview and resolution service that settles complaintsin a proportionate manner and makes a positivedifference for future Land Registry customers.
People can expect from the ICR team:— courtesy— honesty— respect— objectivity— plain language.
The principles of good complaint handlingThe Ombudsman Association’s principles of goodcomplaint handling underpin the process the ICRcarries out when reviewing a complaint. They are:— clarity of purpose: each review includes a clear
statement of its purpose, intent and scope— accessibility: the service is free, open and
available to all who need it— flexibility: procedures are responsive to the
needs of individuals— openness and transparency: we provide public
information that demystifies our service— proportionality: the process and resolution are
appropriate to the complaint— efficiency: the service strives to meet challenging
standards of good administration— quality outcomes: complaint resolution leads to
positive change.
Our officeIt is vital to my independence that I am not part ofLand Registry or a civil servant. The service Iprovide is under the terms of a contract and servicelevel agreement with Land Registry, and I ampersonally responsible for all conclusions andrecommendations that come from complaintreviews. I am supported by a small team of staffseconded from Land Registry but directly line-managed by me. These staff bring to the office thebenefit of their knowledge of Land Registry practiceand procedure and the legislation under which LandRegistry operates.
Our remitAnyone who has made a complaint to LandRegistry and is dissatisfied with the outcome canask me to review the matter. However, I cannotreview or overturn Land Registry’s legal decisions orinvestigate issues that are subject to proceedingsbefore the Adjudicator to HM Land Registry or acourt. In addition, I will not generally be able toaccept a referral made more than six months afterthe date of the final complaint response from LandRegistry.
Initial enquiriesBefore a complaint is accepted for review, apreliminary investigation is carried out to determinewhether or not the complaint is one that falls withinmy remit. This may involve discussion with thecomplainants to find out more about theircontinuing areas of dissatisfaction, and to gain anunderstanding of the outcomes the complainantsare hoping to achieve. It may also be necessary tomake enquiries of Land Registry in order to clarifythat its internal complaints procedure has been fullycompleted. If the complaint is not one that I can
Independent Complaints Reviewer for Land RegistryAnnual Report 2012/13
7
consider, we will offer advice to the complainant onoptions for pursuing the matter.
Full reviewWhere there is a full review, a summary of the issuesis sent out to the complainant for agreement. This isto make sure there is a clear, shared understandingat the outset of the areas to be addressed. A copyof the summary is also sent to Land Registry. All theavailable information is then analysed in detail and Iconsider whether the concerns that have beenraised are justified.
The outcome of the review is a report sent at thesame time to the complainant and to Land Registry,giving my conclusions and any recommendations.The aim of a report is to set out, in as clear andstraightforward a manner as possible, my opinionon the way in which matters have been handled byLand Registry, and to provide redress in appropriatecases. Both the complainant and Land Registryhave the opportunity to comment on a draft beforethe report is finalised.
RedressI have three main forms of redress at my disposaland these are:— that Land Registry should apologise— that Land Registry should make a consolatory
payment (maximum £5,000) in recognition ofdistress and inconvenience experienced as aresult of shortcomings in the service provided byLand Registry
— that Land Registry should consider makingchanges to its practice and procedure.
In deciding when to consider making a consolatorypayment, I have regard to the ICR Office’s FinancialRedress Policy. The sums paid are to reflect distressand inconvenience an individual may have suffered.They are fixed according to the seriousness of anyservice failures identified, as well as particularcircumstances of the individual complainant.
Independent Complaints Reviewer for Land RegistryAnnual Report 2012/13
8
3 Facts and figuresThe table below shows the number of complaintswhich were the subject of a full review during2012/13 compared with the previous two years,and also the number of complaint issues upheldand rejected.
We have also assisted 77 complainants whosecases did not at the time fall within the remit of myoffice, to whom we were able to give advice aboutLand Registry’s complaints process or proceduresor the appropriate next step in resolving theirproblem.
RecommendationsMy recommendations to Land Registry aredesigned to provide redress to individual customersand also to help Land Registry improve its systemsand procedures to reduce the risk of similarcomplaints recurring in future. During 2012/13 Imade 27 recommendations to Land Registry andthe categories in which they fall are set out in thetable below.
Independent Complaints Reviewer for Land RegistryAnnual Report 2012/13
Land Registry responded positively to all myrecommendations and ICREST continues to reviewand facilitate the implementation of therecommendations I make aimed at improving LandRegistry’s procedures and guidance and theinformation it provides to the public.
FeedbackWe are committed to receiving feedback, good orbad, and we have continued to send out customerquestionnaires with every completed review. Theresponse rate for questionnaires this year was 17per cent, a disappointingly low figure, although wedid also receive thank you cards and letters. Themajority of the responses indicated that thecomplainants were satisfied with the service theyhad received. Negative responses related todissatisfaction with the conclusion of reports or thefact that the remit of my role was not as wide as thecomplainant would have liked.
Financial informationAs already mentioned my office is manageriallyindependent from Land Registry.The following table compares expenditure over thelast three years and it demonstrates our continuingefforts to manage our budget as effectively aspossible and provide good value for money.
Independent Complaints Reviewer for Land RegistryAnnual Report 2012/13
10
Recommendation type 2012/13 2011/12 2010/11Apology 45% 34% 54%Consolatory payment 37% 23% 21%Review procedures/guidance 7% 11% 10%Remind staff of existingprocedures/guidance
7% 7% 2%
Review/improve public information 4% 14% 10%Other 0% 11% 2% ICR running costs 2012/13 2011/12 2010/11
4 CasebookThe complaints I deal with represent only a very tinyproportion of Land Registry’s cases. But theyhighlight some of the difficult issues that test thefairness and customer focus of Land Registry’sprocedures and systems. New issues crop up eachyear but there is also a hard core of issues thatdoes not go away. These relate to Land Registry’sbasic role and the clarity of information andexplanations it provided, as well as morecontentious issues such as applications for adversepossession.
In this section I will look at examples of the cases Ihave considered this year, of the recommendations Ihave made, and of the improvements that myrecommendations have achieved for customers.
Mistakes at first registrationLand Registry operates in complex territory, wherethe legal rules are very specific and plans and mapscan be unclear or difficult to interpret. It is theresponsibility of all the professionals involved – LandRegistry staff of course, but also independent legaladvisers and surveyors – to help customersunderstand the registration processes and toensure that registrations are completed correctly.Two cases that I investigated this year illustrated thedifficulty of going back to try to unravel pastmistakes, and the distress that the process cancause.
In the case of Ms A her property was registered in1992. The application form was completed by Ms
A's solicitors and they indicated that all documentsand deeds had been checked and no question ordoubt relating to the title had been identified. In factthe documents provided by the solicitors did notclearly identify the property and Land Registry didnot request clarification. As a result much too largean area was included in Ms A's title.
The problem was compounded because, in spite ofa number of attempts over the years by neighboursof Ms A to point out the error, Land Registry did notaccept until 2008 that there was a mistake in theregistration.
A further complication was that, although there wasno doubt Ms A's title was not correct, it was verydifficult to work out what land should have beenincluded. A Deputy Adjudicator who heardevidence on the subject in 2010 was very critical ofa “hopelessly inaccurate” 1988 survey and also of“misinterpretation” by Ms A's solicitors in 1992.
I concluded that Land Registry, while clearly notresponsible for the problems that existed before theproperty was registered, could have taken greatercare with the registration application in 1992 andcould have identified the uncertainty regarding thearea owned by Ms A. This would have enabledLand Registry to raise the problem with Ms A'ssolicitors so that they could investigate and resolveit.
I drew Ms A's attention to the possibility of making aclaim for compensation under the statutoryindemnity scheme set up to reimburse lossescaused by mistakes in the register. In addition I
Independent Complaints Reviewer for Land RegistryAnnual Report 2012/13
11
recommended that Land Registry should acceptthat it could have done more to clarify the area tobe registered, could have been quicker to admit themistake and should apologise for these servicefailures.
The second case was that of Mr B. There werehistorical problems regarding the boundary betweenhis property and the neighbouring property, whichbelonged to the local council. Mr B applied to LandRegistry for alteration of the council's title. Thecouncil objected. Land Registry has no power todecide disputes of this type and informed Mr B andthe council that, unless an agreement could bereached by negotiation it would be necessary forthe matter to be referred to the Adjudicator for HMLand Registry for a judicial determination.
Mr B and the council started to negotiate andapparently reached a partial agreement, at whichpoint Land Registry made what it called a'compromise proposal'. Unfortunately this proposal,rather than leading to a solution, caused confusionand disagreement between Mr B and the council.The negotiations were abandoned and after somemonths delay the dispute was referred to theAdjudicator. The Adjudicator decided that Mr B'sapplication for alteration of the council's title shouldbe granted.
Mr B complained that Land Registry should havespotted the errors in the council's title and also thatLand Registry's 'compromise proposal' hadprevented an agreement being reached. He felt thatif Land Registry had handled matters better thestress and expense of the formal hearing before theAdjudicator could have been avoided.
Land Registry accepted that there had been amistake in the council's registration, though itmaintained that this had been the result ofshortcomings in the original plans. It also acceptedthat the 'compromise proposal' had been a mistakeand that it had taken too long to refer the matter tothe Adjudicator. Land Registry paid part of Mr B'scosts (the other part having already been paid as aresult of the adjudication) and offered a consolatorypayment in respect of the distress andinconvenience that Mr B had experienced.
I felt that Land Registry responded appropriately byadmitting that it had not handled matters well andoffering financial redress. I noted, however, thatthere was little advice available for Land Registrystaff on how long to allow for negotiation indisputed cases. I felt that it would reduce the risk ofsimilar problems in future, and improve theconsistency of customer service, if Land Registrywere to provide guidelines on this issue, andrecommended that this should be considered.
General boundariesPerhaps the most difficult legal concept for LandRegistry's customers to grasp is the concept of'general boundaries'. What the 'general boundaries'rule means is that Land Registry title plans show theapproximate position of boundaries rather than theprecise legal boundary line. This in turn means thatLand Registry can offer only limited help tocustomers who have boundary problems. As longas Land Registry is satisfied that the red lines on thetitle plan indicate the general position of theproperty in relation to the fences, hedges, roads etcshown on the relevant edition of the OrdnanceSurvey map, it has done its job. Any other questions
Independent Complaints Reviewer for Land RegistryAnnual Report 2012/13
12
or disputes must be tackled by the property ownersaffected looking at the situation on the ground.
One of the complaints I looked into this yearillustrates very clearly the misconceptions that canarise about Land Registry's role in relation toboundaries. Mr C discovered that the fencebetween his property and his neighbour's was in asignificantly different position from the positionshown in the plans drawn by the original developerof the land in about 1930. The original plots wereshown as all the same width, but Mr C found thathis plot was about 8 feet narrower than hisneighbour's.
Mr C discovered that previous owners of hisproperty in 1974 had contacted Land Registry withthe same concern, and that Land Registry hadnoted that the neighbours appeared to haveencroached on their plot. He felt strongly that LandRegistry should have made a note on the register ofthe problem identified in 1974, and on each transfershould have checked the situation on the groundagainst the title plan. Mr C argued that the 'titleabsolute' granted by Land Registry had no realmeaning unless these steps were taken.
Land Registry had responded by explaining its rolein dealing with transfers of registered land and theconcept of 'general boundaries'. I found noevidence that Land Registry was, as Mr Csuggested, evasive or that it deliberately avoidedproviding information. On the other hand it did notset out clearly the limits of its role and of what itcould do to assist.
I recognised that Mr C did have the benefit ofindependent legal advice, and that Land Registrymight well have expected the key issues to beaddressed by his solicitors. Nonetheless I felt thatLand Registry could have done more to recogniseand address Mr C's misconceptions and toemphasise how limited its role is in relation toboundaries. This could have helped Mr C to take onboard the fact that Land Registry was notresponsible for policing his boundary and toconsider other options for addressing the issuerather than continuing frustrating and unproductivecorrespondence with Land Registry. Irecommended an apology and a consolatorypayment in recognition of the additional distress andinconvenience Mr C experienced as a result of notreceiving a more fuller, clearer response at an earlierstage.
The purpose of Land Registry surveysLand Registry may arrange for a property to besurveyed to help it deal with a registrationapplication or an enquiry. However it does notalways explain the reason for the survey and thislead to misunderstanding, unrealistic expectationsand complaints.
Mr D owned one of a number of business units andcontacted Land Registry to ask for help with adispute he was having with some of the owners ofthe other units. Land Registry decided to arrange asurvey of the site to check whether the title plans forthe individual properties had been correctlyprepared. This involved checking whether the titleplans appeared to reflect the features shown on theOrdnance Survey map at the time the propertieswere first registered. However, Land Registry did
Independent Complaints Reviewer for Land RegistryAnnual Report 2012/13
13
not explain the very limited scope of the survey andMr D naturally hoped that it would help establish thecorrect boundaries between the units.
To make matters worse, when the surveyor visitedthe site Mr D was not present (having been told thatthis was not necessary) but some of the other unitowners were, and the surveyor got involved in adetailed discussion regarding the situation. WhenMr D became aware of this he understandably feltthat he had been at a disadvantage because he hadnot been there. Mr D's confidence in the processwas further undermined by the fact that the surveyreport included some obvious factual errors.
I did not share Mr D's view that Land Registry waslargely responsible for his ongoing problems with hisneighbours. I did, however, find that the distressthat Mr D had experienced could have beensignificantly reduced if Land Registry had beenmuch clearer from the start about what it could andcould not do, in particular about the specific andlimited purpose of the survey. I was also critical ofthe conduct of the survey, which had given Mr D theimpression that Land Registry was unfair andinconsistent in its approach. I recommended anapology and a consolatory payment in recognitionof the shortcomings in the service provided and theavoidable inconvenience and distress caused to MrD.
The difficulties of applying for a precise boundary As I have mentioned, Land Registry normallyregisters property with 'general boundaries' whichshow the location of the property in relation to thefeatures shown on the current Ordnance Survey
map. Owners of registered properties who wanttheir title plans to show precise boundaries canapply to Land Registry for the boundaries to be'determined'. A person applying for a determinedboundary is required to provide detailed plans withaccurate measurements of the distances betweenthe boundary and fixed points on the ground. Theprocess can be costly and if there is no agreementbetween the property owners affected, LandRegistry is obliged to refer the application to theAdjudicator for a full hearing and a judicialdetermination.
Mr E made an application in 2007 for a determinedboundary. There were serious delays by LandRegistry in the processing of the application and ittook 15 months for the application to reach a stageat which notice was served on Mr E's neighbour.This included periods totalling approximately eightmonths when Mr E received no progress reportfrom Land Registry.
Land Registry, in response to Mr E's complaint,admitted that the delay was “inexcusable”. Itapologised and offered a consolatory payment.While I welcomed this willingness to admit amistake and make amends, I was not satisfied thatLand Registry had recognised either the full extentof the delays or the impact that the overall impactthat they had had on Mr E, and I recommended afurther formal apology and an additional consolatorypayment.
In other respects, however, I found that LandRegistry had followed fair and appropriateprocedures. Although Mr E felt aggrieved that he
Independent Complaints Reviewer for Land RegistryAnnual Report 2012/13
14
had been forced, because of his neighbour'sobjection to his application, to go through anadversarial hearing before the Adjudicator, Iaccepted that this was unfortunately a necessarypart of the process where no agreement can bereached.
I commented, in addition, that a determinedboundary application, though probably originallyenvisaged as a simple cost-effective way of fixing anexact boundary, is in fact a cumbersome anddifficult process. It does not really appear to beserving the purpose for which it was intended. I amaware that Land Registry has been reviewing thecurrent arrangements, and look forward to hearingthe outcome.
A clear pathway for complaintsLand Registry's customer engagement strategydefines a complaint as any expression ofdissatisfaction. It makes for good customer service,and also for efficient use of Land Registryresources, if complaints are recognised promptlyand customers are able to follow a clear paththrough the internal complaints process, with theoption of independent review at the end if stilldissatisfied. In a number of cases in 2012/13 Ifound that Land Registry had been slow torecognise a complaint, and had also failed to followits own complaints procedure.
Ms F had been in correspondence with LandRegistry on and off since 2004. I recognised thatLand Registry staff had tried hard, over aconsiderable period, to answer Ms F's questions.However the correspondence was not managed
effectively. Land Registry tried to bring thecorrespondence to a close in 2007. This was notsuccessful and it continued into 2008. Moreover inspite of the fact that Ms F was evidently dissatisfied,the complaints procedure was not used.
It was not until 2011 that Ms F's continuingconcerns were treated as a complaint, and she wasgiven the opportunity, following a final responsefrom the local Land Registrar, to request anindependent review.
I concluded that if Land Registry had started thecomplaints process much sooner, either in 2004 orfailing that at the beginning of 2007, Ms F wouldhave been able to request an independent review atleast four years earlier than she in fact did. Irecognised that this would not necessarily haveresolved the matter from Ms F's point of view.However it would have saved a considerableamount of frustrating and unproductivecorrespondence and Ms F would have had anindependent and objective view of the matter muchearlier. I recommended that Land Registry shouldapologise for not following the advertisedcomplaints process and not offering much soonerthe option of an independent review. I alsorecommended a consolatory payment in recognitionof the fact that the very prolonged correspondencemust have added significantly to the inconvenienceand frustration that Ms F had experienced.
Restrictions on the registerRestrictions are placed on the register to protect theinterests of third parties, such as the beneficiaries ofa trust affecting the registered property. The result of
Independent Complaints Reviewer for Land RegistryAnnual Report 2012/13
15
the restriction is to prevent disposal of the propertywithout the requirements of the restriction beingcomplied with.
Land Registry's standard practice is always to notifythe registered proprietor of an application and togive the opportunity for objections to be raised.Where no notice of the application is given, and arestriction is placed on the register without theknowledge of the registered owner, it isunderstandable that the owner should feelaggrieved and unfairly treated.
Two of the complaints I investigated this year relatedto restrictions entered on the register without noticebeing given to the registered owner.
The first was the case of Mr and Mrs G. LandRegistry received an application in 2003 for arestriction on the title of Mr and Mrs G. Theapplication was supported by a copy of a trustdeed. Instead of following normal practice andinforming Mr and Mrs G of the application LandRegistry simply entered the restriction on their title,preventing disposal of the property without theagreement of the beneficiaries of the trust.
In 2006 Mr and Mrs G contacted Land Registry toobject to the restriction and to ask for it to beremoved. Land Registry notified the trustbeneficiaries who objected. In view of the dispute itwas necessary for it to be referred to theAdjudicator to HM Land Registry for judicialdetermination. By the time the Adjudicator came tohear the case the property had been sold as a resultof a court order and the Adjudicator ordered LandRegistry to cancel the restrictions.
I could understand why Mr and Mrs G felt that LandRegistry's failure to give them notice of theapplication in 2003 was the direct cause of a greatdeal of the distress and inconvenience they laterexperienced as they tried to get the restrictionremoved. I recognised, however, that it was notpossible to know to what extent matters wouldhave turned out differently if the dispute had cometo light in 2003 rather than 2006.
I found also that Land Registry had failed to provideproper information about its complaints process, inparticular about the options available if Mr and MrsG were not satisfied with Land Registry's response.As a result Mr and Mrs G referred the complaintdirectly to the Parliamentary and Health ServiceOmbudsman, only to have it referred back to theICR office as the final stage of Land Registry'scomplaints process. I found that the delay anduncertainty added to the overall distress Mr and MrsG experienced.
Land Registry had already apologised and offered aconsolatory payment for failing to give notice to Mrand Mrs G of the application for a restriction. Irecommended an additional apology and paymentto reflect the failures with regard to the complaintsprocess.
Mr H's complaint raised similar issues. It related to arestriction placed on Mr H's title on the applicationof his mother-in-law. Land Registry failed to informMr H of the application and went ahead andentered the restriction. When Mr H found out, hecomplained that he had had no opportunity toobject, and also that the existence of the restriction
Independent Complaints Reviewer for Land RegistryAnnual Report 2012/13
16
had helped his mother-in-law win a court caseregarding the property.
In spite of being aware that Mr H's mother-in-lawhad been successful in court, Land Registrysuggested to Mr H that he should apply for therestriction to be removed. It did not warn him thathe might be unsuccessful or suggest he should getlegal advice. Mr H then made an application for therestriction to be removed but it was rejected on thegrounds that his mother-in-law had a court order tosay she had an interest in the property. I found thatLand Registry had given mixed messages to Mr H,encouraging him to make an application for therestriction to be removed, then rejecting it as“misconceived”.
In this case too there were problems with thecomplaints process, with confusion about LandRegistry's final response to the complaint and aboutthe options available if Mr H remained dissatisfied.
Land Registry admitted failing to give Mr H notice ofthe application and confusion about the finalcomplaint response. It apologised and offered aconsolatory payment but maintained that the entryof the restriction had not affected the outcome ofthe court case. I accepted that Land Registry'sstance regarding the court case was reasonable.However I recommended an additional apology andconsolatory payment in recognition of the mixedmessages given regarding the application for theremoval of the restriction and lack of informationabout the final stage of the complaints process.
Help for parish councilsMr I was the chair of a parish council. Hecomplained about the way in which Land Registryhad handled an application by a local resident foradverse possession of a local beauty spot. Thecircumstances were complicated but essentiallyLand Registry had granted the application withoutinforming the parish council and giving it theopportunity to object. The council was shockedwhen it found out about the registration andcomplained that Land Registry had acted unfairlyand simply presented it with a 'fait accompli'. LandRegistry admitted that it should have informed theparish council before granting the application sothat it would have had the opportunity to object. Iwelcomed this admission and the fact that LandRegistry had apologised. I felt, however, that LandRegistry could have shown greater understanding ofthe difficulties that the parish council had faced intrying to protect the interests of the localcommunity. I upheld the complaint andrecommended a further formal apology and also aconsolatory payment to reflect the stress andinconvenience council members had experiencedas they tried to find out what had happened andwhether there was any way of reclaiming the landfor public use.
Moreover I felt that the case highlighted thedifficulties that parish councils may face whenconsidering how best to safeguard the interests oftheir local community in relation to land that is usedand valued as a local amenity. It was clear that thecouncil was taken completely by surprise thatsomeone could occupy and then register land thathad been enjoyed as a local beauty spot. Irecognised also the point made by the council that
Independent Complaints Reviewer for Land RegistryAnnual Report 2012/13
17
it had no funds to enable it to take legal advice or topursue costly legal action. I explored LandRegistry's website but could find no guidance thatreferred specifically to parish councils and thedifficult issues that they can face with regard to landregistration. I therefore recommended that LandRegistry should consider providing informationdirected at parish councils to draw together the keypoints about land registration that may be relevantto their work.
Charges to recover legal aid costsThe Legal Services Commission (LSC) isresponsible for the administration of legal aid,including the recovery of contributions from peoplewho have had legal aid funding. The LSC haspower to apply for a charge to be registered againstthe title of a property owner who owes money inrespect of legal aid. Land Registry has no choicebut to grant the application provided that the nameof the person subject to the charge is the same asthe name of the person shown in the register as theproperty owner. The LSC provides Land Registrywith very little information about the basis of thecharge and this can make it difficult for LandRegistry to answer questions and complaints fromthe property owners affected.
Mr J complained that he had had two charges bythe LSC registered on his title. The first had beenremoved in 2010 when he paid off the moneyowing. The LSC then applied in 2011 to register asecond charge. This related to legal aid funding hehad received in 2002, before the funding that led tothe first charge.
Land Registry notified Mr J of the 2011 applicationand gave him the opportunity to object. When Mr Jobjected Land Registry asked the LSC to respondto the objection and considered the objection andresponse before granting the application. Takinginto account the fact that Land Registry has littlepower to look into or refuse to register an LSCcharge, I was satisfied that Land Registry had doneas much as it could.
On the other hand I appreciated the difficulty of MrJ's position and was aware from previouscomplaints I have investigated that LSC chargescan come as a very unwelcome shock to theproperty owner affected. I recognised that LandRegistry's formal notices and explanatory notes,though they do attempt to set out the importantpoints clearly, can appear daunting. I also notedthat Land Registry had recently published in PublicGuide 23c clear and well-presented informationabout restrictions to protect LSC charges. Irecommended that Land Registry should considerwhether it could extend Public Guide 23c to coverLSC charges themselves as well as restrictions toprotect them, and also that Land Registry shoulddiscuss with the LSC how to make thearrangements for registration of LSC charges morecustomer-friendly.
Boundary discrepancies in building developmentsMr K contacted Land Registry to enquire about astrip of land that ran along the foot of his gardenand the gardens of a number of other properties inthe same development. Land Registry, after asurvey, agreed that there was an unregistered stripof land in the position described by Mr K butdisagreed about the size of the strip. Land Registry
Independent Complaints Reviewer for Land RegistryAnnual Report 2012/13
18
outlined two options that Mr K could consider if hewished to apply for registration of the part of thestrip that was next to his garden.
Mr K felt that he had produced solid evidence thatthe strip was three metres wide and that it belongedto him and his neighbours on the basis of the legal'hedge and ditch' presumption.
I found that Land Registry took Mr K's concernsseriously and tried to assist. It was not my role todecide the legal position, but I could see nothing tosuggest that Land Registry, as Mr K claimed,deliberately gave contradictory answers or that itwithheld information. However Land Registry hadnot explained, when Mr K first made contact, thelimits of its role and what it could and could not do.I felt that this had led Mr K to hope for a moreproactive approach from Land Registry than was infact possible.
In addition I had considerable sympathy with Mr Kand the difficulty he had experienced in finding theway forward with a genuine problem. It seemed thatwhen the original developer sold Mr K's house thearea removed from the developer’s title was largerthan the area included in Mr K’s title. Mr K’s title wasbased on the area fenced by the developer, whichdid not exactly follow the boundary of thedeveloper’s own title. The same applied to anumber of other houses in the same development.This created strips of land that were unregistered.The strips were shown on Land Registry’s indexmap as unregistered but once all the plots had beensold there was no easy way of sorting outownership of the strips. I suggested that it wouldhelp prevent similar complaints, and also save Land
Registry staff time, if Land Registry considereddeveloping a standard process for dealing withgaps or strips of this sort (for example by reviewingdevelopments when complete to identify andaddress any gaps or by publishing customerinformation on how gaps can arise and the optionsfor sorting them out).
Adverse possessionCases of 'adverse possession', where squatters, onthe basis of long occupation, obtain title to propertybelonging to someone else, are, not surprisingly,often disputed. The case of Mr L was unusual inthat the original owner was happy to allow his landto be used by Mr L and his neighbours asallotments.
Mr L tried unsuccessfully for a number of years toregister his ‘allotment’ with Land Registry. Theoriginal owner of the land had done nothing tointerfere with the use of any of the the allotmentsand on his death his executors offered to transferthen to the various residents who had been usingthem in return for payment of conveyancing chargesand Land Registry fees. Most allotment holdersaccepted this offer but Mr L refused on the basisthat he believed that the original owner had madehim a gift of the land (though there were nodocuments to show this).
Mr L then applied to Land Registry in 2007 foradverse possession of the land. The applicationwas rejected following a survey on the basis that,although some of the land was in use, most wasovergrown and not obviously occupied by Mr L. MrL proposed that he could be be granted title to partof the land. Land Registry was already aware at that
Independent Complaints Reviewer for Land RegistryAnnual Report 2012/13
19
time that the owner’s executors were happy inprinciple to Mr L being registered as owner of thearea he had used as an allotment but refused todiscuss Mr L’s proposal. I felt that this was unhelpfuland that it would have been reasonable for LandRegistry to agree that a modified application mightbe acceptable.
Mr L made a similar application in 2009. On thisoccasion Land Registry served notice on theexecutors of the original owner, which it normallyonly does once an application has been acceptedas capable of succeeding, but then cancelled theapplication as misconceived. The Land Registraraccepted that this application was poorly handledand offered Mr L a consolatory payment andreimbursement of expenses.In 2011 Mr L made another application and thistime, following a referral to the Adjudicator, he wasfinally successful. After looking at the whole history, I felt that Mr L hadnot helped himself as he had rejected offers madeby the executors of the original owner. On the otherhand I considered it had taken much longer than itshould have done for the matter to be resolved andthat Land Registry was partly responsible for this.Taking into account that Land Registry had alreadyoffered to reimburse expenses and make aconsolatory payment in respect of the avoidabledistress Mr L had experienced, I did notrecommend further redress. I did, however,recommend that Land Registry shouldacknowledge that a more proactive approach byLand Registry in 2007 could have enabled progressto be made at that time.
Impact of the ICR and ICR recommendations onLand Registry practiceIt takes some time for my recommendations to feedthrough into changes of Land Registry practice.Land Registry is a large organisation with complexresponsibilities and careful planning is requiredbefore introducing a change in procedure. As I havementioned, the planning and implementationprocess is managed by ICREST (the ICR Evaluation& Study Team)
The developments mentioned in this section havebeen implemented in 2012/13 in response torecommendations in earlier ICR reports.— Land Registry has published on its website a
short guide to Land Registry's role andresponsibilities.
— A review of Land Registry's rejection andcancellation policy resulted in a decision toadopt a more flexible approach, askingapplicants to provide extra information in morecases rather than rejecting applications out ofhand.
— Amendments to Land Registry's guidance andpractice on transfers of local authority housingestates should ensure consistency betweenwhat the guidance says and what happens inpractice.
— Guidance in Land Registry Practice Guide 52 oneasements claimed by prescription has beenimproved.
— Examples have been included in Land RegistryPractice Guide 39 on rectification and indemnityto make it more user-friendly.
Independent Complaints Reviewer for Land RegistryAnnual Report 2012/13
20
— Inconsistencies between guidance for staff andcustomers on adverse possession cases havebeen addressed to ensure that both parties areinformed when a survey is arranged.
— Guidance has been provided to staff on how toavoid confusion in situations where LandRegistry receives correspondence from differentindividuals on the same issue.
Another positive development stemming directlyfrom work by the ICR office is that ICREST haspublished on Land Registry's intranet a series ofaccessible explanations of aspects of LandRegistry's legal role and responsibilities. These areclosely based on explanations developed by theICR to communicate complex concepts in simplestraightforward language. This and other initiativesmentioned in my introduction reflect a renewedenthusiasm on Land Registry's part to find newways of engaging with customers. I stronglysupport the whole project and look forward toreporting on progress next year.
Independent Complaints Reviewer for Land RegistryAnnual Report 2012/13
