Mortgages, titles and covenants when you sell part of your garden

What legally happens when you sell part of your garden?

Legally, you transfer part of your registered title to the buyer. HM Land Registry’s form TP1 is the form used to transfer part of a registered title, and its own description gives the example of a house and garden registered under one title where the owner wants to sell part of the garden.

After registration, the plot has its own title number and plan, and your title is reduced to the house and the garden you keep. The transfer also creates the rights and obligations that will govern the two properties from then on: who can cross whose land, where the services run, who maintains which fence, and what can be built.

Most of the legal work is about getting those details right. A clear plan, a lender who agrees early, and a careful check of the existing title make the difference between a smooth sale and a stalled one.

What if my house isn't registered at HM Land Registry?

If your house isn’t registered, your solicitor will need to deal with registration as part of the sale. GOV.UK says you must register land you have bought, been given, inherited or mortgaged, and that a property may not be registered if it was owned before 1990 and hasn’t been mortgaged since.

This is routine but takes time, because the title has to be proved from the old deeds. Find your deeds early and ask your solicitor to check them before you agree heads of terms. Missing deeds can usually be dealt with, but it is better to know at the start.

Do you need your mortgage lender's consent?

Yes. If your house is mortgaged, the garden is part of the lender’s security, so the lender must agree to release the plot from its charge before the buyer can take it free of your mortgage. HM Land Registry’s form DS3 is the form a lender uses to show it is releasing part of a registered title from a mortgage.

Lenders mainly want to know that the house is still good security with a smaller garden. They may ask for a valuation of the house as it will be after the sale, a copy of the plan, and details of any new access running beside the house. Some may ask for part of the sale money to be paid towards the loan. Each lender has its own process and timescale, so contact them early.

If more than one lender has a charge, such as a second-charge loan, each one needs to agree. If you jointly own the house, every legal owner must sign the transfer.

Why does the transfer plan matter so much?

The plan is what defines the land sold, so mistakes in it can cause boundary disputes, rejected applications or a plot that doesn’t match the planning permission. HM Land Registry’s guidance sets out what plans for a transfer of part should look like, and following it from the start avoids delays.

The plan should match the planning drawings. If the approved layout needs a visibility splay at the street, a bin collection point or a wider access than the existing drive, the land or rights for those must be in the transfer, not left for later.

• Drawn accurately to a stated scale; HM Land Registry prefers 1:1250 to 1:500 for urban property.
• Shows a north point and enough surrounding features, such as roads and junctions, to locate it on the Ordnance Survey map.
• Shows the land sold clearly, for example by edging or colouring, without hiding other detail.
• Gives any measurements in metres to two decimal places, matching the scaled measurements as far as possible.
• Signed by the seller, and not marked for identification only, as such plans may be rejected.

What are restrictive covenants and can they stop a sale?

A restrictive covenant is a promise in the title not to do something on the land, such as building more than one house, building without a particular person’s approval, or using the land other than as a private garden. Covenants can bind later owners, so one written decades ago can still matter today.

A covenant doesn’t stop you selling the plot, but it can stop or limit building on it, and a buyer or their lender will want it dealt with before committing. Your solicitor will read the covenants on your title, and any older deeds they refer to, and advise whether they are likely to be enforceable and who might have the benefit of them.

How can a restrictive covenant be dealt with?

There are three usual routes: insurance, agreement with whoever has the benefit, or an application to the Upper Tribunal (Lands Chamber). Which one fits depends on how old the covenant is, who can enforce it and how clearly it is breached.

Indemnity insurance pays out if someone enforces the covenant later. It is often used for old covenants where nobody obvious has the benefit. Insurers often won’t offer cover once the person with the benefit has been approached, so speak to your solicitor before contacting anyone.

Agreement means negotiating a release or variation with the people who have the benefit, often neighbours or the original developer. Some may ask for payment.

The Upper Tribunal route is a formal application under section 84 of the Law of Property Act 1925 by the owner of the land. The tribunal’s guidance says people who may benefit are notified and can object, and that successful objectors are generally awarded their reasonable costs, while successful applicants cannot expect theirs. It cannot discharge positive covenants. It takes time and money, so it is usually the last resort.

What about rights of way and access to the plot?

The new home needs a legal right to reach the road, for people, cars, services and emergency vehicles. If the plot is reached across land you keep, the transfer grants a right of way over the drive; if it relies on a shared drive or private lane owned by someone else, check that the existing right is wide enough for an extra house.

Existing rights are sometimes limited, for example to use with one house, on foot only, or for agricultural purposes. A right that covers your garden today may not cover a new home. A strip of land that controls the only access is a ransom strip, and its owner can ask for payment to let the plot use it.

Rights can also be acquired by long use. HM Land Registry’s guidance on prescription says use must have lasted at least 20 years, without force, without secrecy and without permission, and that evidence of continuous use is needed to register such a right. It is not a quick fix for a new access.

Which rights and easements need to be written into the transfer?

The transfer should grant the plot every right it needs and reserve every right your house needs. Missing one can mean renegotiating with a neighbour you no longer control.

• Rights of way over any shared drive, with who pays to maintain it.
• Rights to lay and use drains, water, power and data cables, with rights to enter to repair them.
• Rights for your house to keep using any services that cross the plot.
• Rights to put up scaffolding or enter briefly to maintain buildings close to the boundary.
• Any right to connect to sewers that run near or under the plot, which may also need a build-over agreement with the water company.

How do you fix the new boundary?

The new boundary is fixed by the transfer plan, and it helps to agree in writing who will put up and maintain the fence or wall. HM Land Registry says registered boundaries are general boundaries, so the plan shows the general position rather than the exact line.

Neighbours can make a boundary agreement about the position of a boundary, its upkeep or both, and HM Land Registry says this can be noted on the register. Where the exact line really matters, a determined boundary can record it precisely, based on an accurate survey.

For a new plot, the cleanest approach is a clear transfer plan, a covenant saying who builds and maintains the new fence, and marking the line on site before completion.

Which new covenants can protect the home you keep?

When you sell, you can ask the buyer to give covenants in the transfer that protect your house. These are negotiated as part of the deal and are best agreed in heads of terms before anyone instructs solicitors.

Your solicitor will explain how each one binds future owners. Restrictions on use are treated differently from positive obligations such as maintaining a fence, and both are only as good as the drafting.

• Build only in line with the planning permission or approved drawings you have seen.
• No windows or balconies overlooking your garden beyond those approved.
• Build and maintain an agreed boundary fence or wall within a set time.
• Working hours, access routes and making good any damage during the build.
• Contribute to the upkeep of a shared drive or private sewer.
• Single private dwelling use only, so the plot can’t later be crammed with more homes.

How long does the legal side usually take?

The legal work for a transfer of part usually takes longer than a normal house sale, because the plan, the rights and the lender’s release all need agreeing. A straightforward case with a cooperative lender and a clean title often moves in a matter of weeks; a defective covenant, an unclear access or an unregistered title can add months.

On option and promotion agreements with us, reasonable legal fees are covered, with the cap agreed in heads of terms. Any purchase is always subject to survey, title and contract. You should always have your own solicitor, and for the tax side, take advice from a tax adviser.