Fresh new batch of Agony Uncle Questions and Answers

[Simon Wright]

A new batch of Agony Uncle questions and responses has been recently added to the website at http://www.periodproperty.co.uk/ppuk_discovering_agony_uncle_201106.shtml

 

[Gareth Hughes]

Kate Stott's query (buying a listed building but not knowing it was listed) sounds like it might be (yet) another case of a curtilage-listed farm building - where only the farmhouse, now in separate ownership, has its own list entry, but the surrounding buildings remain listed, without their own list entries, by virtue of having been part of the same property at the time of listing.

 

[Flyfisher]

That sounds like a legal nightmare Gareth!

Surely, when a listed property is split into separate legal titles then any listing would also be transferred to the new titles? Indeed, unless this was explicitly done, how could EH (or whoever it is now) actually claim a 'curtilage listing' anyway?

Given that the listing descriptions are usually fairly vague anyway, and I've never seen a listing that includes a map of the 'curtilage', how can the extent of the curtilage be defined? It surely can't be subjective - that would really have the lawyers rubbing their hands in anticipation of expensive legal arguments.

 

[Gareth Hughes]

It is subjective - ultimately it's a matter of "fact and degree" to be decided by the courts. There's quite a bit of case law on it, except that each case seems to contradict the previous one.

 

[Pford75]

AIUI, if the purchasers solicitors undertook all the relevant LA searches and were advised that the property was not subject to listing, a court would be highly likely (not certain) to find in favor of the same LA later bringing an action. If they did, then the purchaser could conceivably claim damages from the LA.

My father is dealing with a similar (and acrimonious) case where a purchaser was advised in writing by the LA, who later tried to bring an action. They were lucky to have retained copies of the documents...they only became aware that their property was listed after building control had been involved and queried the lack of LBC!!

 

[Matt Green]

RE: Dette Barton (East Sussex)

Contact me.

 

[Penners]

Thanks for the update, Simon.

 

[garnett]

Hi

The curtilage thing is a real problem at my authority. I was surprised that the expert response didn’t cover this. What people forget is that local authorities don't list buildings - it is an EH function. It is not in the council's gift to adjudicate. Indeed a recall a case where a CO did so incorrectly and got an award of costs against the council.

Our land charge people put a statement on the searches warning people if there is a listed building nearby. It tells them that they need to consider the following questions to establish it is listed by curtilage.

Is it attached to a listed building?

Is it in the grounds which are used for the enjoyment a house or other structure of a listed building and built before 1948?

Was it in the same ownership as the main listed building at the time of listing?

If you answer yes to one or more please talk to us on ......

I have a property where the top two storeys have one address and the lower two a different address on a lower road. The list description covers the upper part of the building and that is the listed address. The rear of these buildings are clearly listed. However the two storeys beneath are not separately listed. They sit on the same footprint and are part of the same elevation. I dread it every time when one of these flats go on the market but EH won't clarify.

Our land charges people would like us to survey all listed building so that they can answer the questions accurately, but the resource implication is huge.

Garnett

 

[Stephen]

The curtilage thing is a real problem at my authority. I was surprised that the expert response didn’t cover this.

There is only so much time and space one can devote to dealing with the questions raised. The issue of curtilage has quite rightly been raised here and would warrant a whole 'answer page' in its own right. The way I read and responded to the question was simply the issue of identifying whether a building is listed when one purchases. Curtilage, especially if now in separate ownership from the listed building, raises a whole load of issues. It is far more difficult to assess if you have never seen the property (e.g. the solicitor) because even the list description is unlikely to make any mention of curtilage buildings and even if you have inspected (e.g. valuer or surveyor) it is not always apparent visually, such as if there is now a fence/wall separating the building from the listed structure.

The essence of the question was whether the matter should have been noted and the simple answer is if it is listed in its own right then yes is the answer. However, if it is curtilage this is a different matter. One would need a lot more info to be able to give a definitive answer. In any event the best advice is to seek further legal guidance on the matter.

 

[Stephen]

Hi

Our land charge people put a statement on the searches warning people if there is a listed building nearby. It tells them that they need to consider the following questions to establish it is listed by curtilage.

Is it attached to a listed building?

Is it in the grounds which are used for the enjoyment a house or other structure of a listed building and built before 1948?

Was it in the same ownership as the main listed building at the time of listing?

If you answer yes to one or more please talk to us on ......

I have a property where the top two storeys have one address and the lower two a different address on a lower road. The list description covers the upper part of the building and that is the listed address. The rear of these buildings are clearly listed. However the two storeys beneath are not separately listed. They sit on the same footprint and are part of the same elevation. I dread it every time when one of these flats go on the market but EH won't clarify.

Our land charges people would like us to survey all listed building so that they can answer the questions accurately, but the resource implication is huge.

Garnett

Your authority are very good then, because most do not do this in my experience.

You also raise the matter of EH not clarifying, what hope has anyone in getting it 'right' at the time of purchase!

I have also found that different COs approach curtilage differently. With cutbacks, etc and limited time I suspect more and more will concentrate on the listed buildings in their district and the curtilage structures will be 'ignored'.

The matter of curtilage is one that really does need addressing. Some time back there was a suggestion that each list entry should include a site plan so that curtilage buildings, etc could more readily be identified. Not an easy task and fraught with potential legal issues from those suddenly finding themselves in a curtilage building, but it is one way to try to resolve the matter.

 

[Flyfisher]

The matter of curtilage is one that really does need addressing. Some time back there was a suggestion that each list entry should include a site plan so that curtilage buildings, etc could more readily be identified. Not an easy task and fraught with potential legal issues from those suddenly finding themselves in a curtilage building, but it is one way to try to resolve the matter.

I hesistate to suggest this because I'd like to think it has already been thought about and rejected for good reasons that my limited experience cannot fathom, but it seems to me that we already have a national registration of property and boundaries called Land Registry. Surely it would not be too difficult to flag a property as being listed within this database?

If a property is sub-divided, it is already possible to obtain a new Land Registry entry to define the new legal entity and record the new owner. The mechanism(s) for doing this are well-established, so surely it would also be easy to carry over any listing on from the original property. Covenants and various other rights and restrictions are carried over when a new Land Registry 'entity' is created, so why can't a listing be treated in the same way?

I thought 'joined-up government' was all the rage these days . . . or did that go out of the window at the last election?

 

[AMc]

I thought 'joined-up government' was all the rage these days . . . or did that go out of the window at the last election?

In order to cut the deficit the ConDems have cut the "joined up" in government by 25% in line with all other spending. This won't affect any front line connections

 

[garnett]

Hello All

We did look at the resource implications a few years back when this information was being digitised onto electronic mapping.

In my authority we have around 1000 list entries. That equates to several thousand different addresses as terraces and flats often count as one list entry. In our case the list descriptions ar early 1950s, mid 1970s and mid 1990s. We would first need to establish what buildings there are within the curtilage (not easy in itself because the curtilage could be tiny or a whole farm estate). Then we need to establish whether they are pre 1948. Again not easy as there is no handy accurate mapping around that date. Finally we have to establish the ownership of the main listed building and the curtilage building at the time when it was listed if that information is still available. We concluded as every other authority has, that there is several years of work to do this and also that it is not our responsibility as a local authority to do this.

If anyone has any suggestions as to what we can do, I am sure every CO in the country would be interested to here!

Garnett

 

[Flyfisher]

Thank you for that insight. I know these things are always more complex than they seem, but it's interesting to learn about some of the complexities.

I take your point about it being a big project if undertaken in one go, but would it not be possible to at least establish the principle so that whenever a curtilage or listing-related issue crops up then the Land Registry database could be updated at that time. After all, these issues must, presumably, be dealt with as and when they arise anyway so the only additional bit of work would be to record the outcome on the LR database, thus making things far simpler in the future.

I accept it would take sometime for everything to be registered but that's no different to the existing LR database anyway, which has plenty of property details not registered, although it's slowly getting there. Isn't it one of those 'elephant tasks'? it looks frighteningly huge until broken down into small chunks over a period of time.

But I take your point about budgets, LA responsibility etc and can see how this would work against dealing with such an 'elephant'.

One thing you mention intrigued me though:

Finally we have to establish the ownership of the main listed building and the curtilage building at the time when it was listed if that information is still available.

Why is the ownership at the time of the listing required? The listing entry for our house has no mention of the owners. Is this information normally held elsewhere and, if so, to what end?

 

[Gareth Hughes]

Because curtilage is defined as at the time of listing - and to be curtilage it must have been part of the same land holding at that time.

I wonder if Garnett (nice to see another CO here!) has also found the number of problems with the mapping in the new EH register of heritage assets that we have - a combination of problems caused by a single entry covering multiple addresses (as in a terrace, for example), and therefore being mapped with only one little blue triangle somewhere on the whole block, items shown as listed which aren't, items where the listed building isn't marked, but an unlisted building with a similar address is, and items mapped bizarrely hundred of metres from their actual location?

 

[garnett]

Hi Gareth

We have as well - they are way out in some cases. For us this is potentially a problem. I operate in an area with an awful lot of thatched buildings. The fire service now use this database to make sure that they send the right equipment to deal with a thatch fire. These errors have implications for us if they are not picked up.

Regarding land registry, I do let our land charges know if we have established that a building is listed by curtilage. However I am still nervous following the case where a CO said a building was listed by curtilage and it was not and ended up with a compensation claim.

Regards

Garnett

 

[Penners]

garnett - it's a good thing you've come along to give us a tiny glimpse into the tribulations of a CO's working life. Those of us who have followed Gareth's posts over the years have gained the impression that it's one long round of jollity, beer and skittles.

 

[Gareth Hughes]

Oh no, not at all. With the cuts I'm having to say goodbye to one of the ladies who peels the grapes, and we now have to cut our own cigars on Tuesdays and Fridays.

 

[Gareth Hughes]

Hi Gareth

We have as well - they are way out in some cases. For us this is potentially a problem. I operate in an area with an awful lot of thatched buildings. The fire service now use this database to make sure that they send the right equipment to deal with a thatch fire. These errors have implications for us if they are not picked up.

Regarding land registry, I do let our land charges know if we have established that a building is listed by curtilage. However I am still nervous following the case where a CO said a building was listed by curtilage and it was not and ended up with a compensation claim.

Regards

Garnett

I let the Land Searches dept know too, when they ask, and I hope the recent court case is an aberration (as I've said before, each case seems to contradict the previous one).
Hadn't come across the thatch issue before (and as some list descriptions fail to mention the roof covering, surely the fire service can't put all their reliance on them?)
Out of 40 list entries round one market place, 13 turned out to be wrongly mapped in some way or other - the record so far in our patch is a listed building which is mapped two miles away, in a different district. I pointed all these out to our EH regional office in Cambridge, who were going to have a meeting to discuss and would "get back to me", but that was 6 weeks ago and I haven't heard anything.

 

[Penners]

Oh no, not at all. With the cuts I'm having to say goodbye to one of the ladies who peels the grapes, and we now have to cut our own cigars on Tuesdays and Fridays.

One had no idea that such poverty existed.