Neighbourly land theft...

[Mulberry View]

So, I know a bit about the existence of adopted rights when a piece of land has been fenced in the wrong place, but what is the law?

 

I have lost a fairly substantial strip of land to a neighbour, but the fence pre-dates both of us. It isn't a substantial fence (4ft timber posts and PVC chain-link) and could easily disappear if it was a clincher as it lies behind a hedge-line that was planted by them against what was believed by the previous owner of our neighbours property to be the boundary, leaving only the hedge as a boundary marker and it then wouldn't be clear who owned the hedge.

 

In reality, the hedge was planted by the neighbour, but it mostly appears to be on our land. However, it would be very difficult to age it, so could my neighbour claim adoptive rights and on what grounds?

[Big Jimbo]

There is a fence, and i take it that that excludes you from the piece of land that you say is yours. Why do you think it is yours ? Do you have a site plan, with clear points of origin from when the land was first turned into a building plot ? I can help but will need more details.

[Big Jimbo]

To go further, 1. You will need a site plan, that has clear points of origin that are still in existance, and can be used by a RICS surveyor to mark out the legal boundaries to your property. This will have to pre-date any equivilant plan that your neighbour might have. If it turns out that you are right, but have been excluded from the land for a period of time, he will have gained adverse possession rights.

                          2. You did'nt buy your house, thinking that you owned this extra piece of land, but now you fancy making a grab for it ? Would that be right ?

                           3. You will need very deep pockets, if your neighbour decides to object to your land grab, and fight you in court.

                            4. If your neighbour objects, expect to spend between 25 to 100 grand.

                              5. Think very carefully. You could be forced to sell your house to pay his costs.

                                 6. P.S. I'm not joking, or winding you up. A Two day court case with Lawyers, Barristers, Expert witness surveyor, etc will cost you £50k, and your neighbour the same. If

                                      you loose, you will have to pay his costs.

[Temp]

Have you checked _both_ title plans from the land registry and compared them with the OS map? Ideally you want both title plans to agree you are right.

 

Unfortunately title plans are not really definitive unless they show the boundary in relation to a fixed feature like a building or old tree.

 

7 minutes ago, Big Jimbo said:

If it turns out that you are right, but have been excluded from the land for a period of time, he will have gained adverse possession rights.

 

I'm not so sure about that. If the neighbour hasn't formally claimed it yet then I don't think he can do so now because the law on adverse possession was changed a few years back. These days the real owner is notified of any claim and has two years to object before they loose it.

 

If I'm wrong then you can scupper his plans by offering to sell it to him for "a nominal £1 subject to contract".  Ask him to accept in writing then immediately back out of the deal. Any subsequent claim for adverse possession fails because by accepting your offer he has accidentally agreed you own it.

 

Regardless of the ownership issue he may have obtained a right of way/passage over some of the land. 

 

 

 

 

 

[Ferdinand]

If you have what you thought you were buying, then 98 times out of 100 it is unlikely to be worth the collateral damage / aggro (imo).

 

I have been on Gardenlaw, which specialises in this type of debate, since (checks) 2005. It is interesting that over that period the general view has changed from the "war of attrition" end towards the "live and let live" end. 

 

In general that is my view, with a few exceptions.

 

Perhaps plant a hedge your side and let nature have the strip in between if it is not an existential issue.

 

Then enjoy your new house.

 

F

Edited September 9, 2020 by Ferdinand

[ProDave]

We were perhaps in the same position.  when we were buying our plot, the title plan (hand drawn) was unclear and had a certain ambiguity  This was resolved by a process at the land registry that tried to map the plan to what has been mapped as being on the ground. And on that basis we agreed to buy the plot "as fenced" and that is the basis of the land registry entry.

 

The process uncovered  a small square of land that was between us and a neighbour but was not on the neighbours title plan. But that square was  enclosed by next doors fence. So in all probability the neighbour has an adverse possession claim over that square of land.  In any event it was of no interest to us so we dis not even consider claiming it should be part of our plot.

[Big Jimbo]

9 minutes ago, Temp said:

Have you checked _both_ title plans from the land registry and compared them with the OS map? Ideally you want both title plans to agree you are right.

 

Unfortunately title plans are not really definitive unless they show the boundary in relation to a fixed feature like a building or old tree.

 

 

I'm not so sure about that. If the neighbour hasn't formally claimed it yet then I don't think he can do so now because the law on adverse possession was changed a few years back. These days the real owner is notified of any claim and has two years to object before they loose it.

 

If I'm wrong then you can scupper his plans by offering to sell it to him for "a nominal £1 subject to contract".  Ask him to accept in writing then immediately back out of the deal. Any subsequent claim for adverse possession fails because by accepting your offer he has accidentally agreed you own it.

 

Regardless of the ownership issue he may have obtained a right of way/passage over some of the land. 

 

 

 

 

 

Temp, I'm not having a dig, but the title plans from the land registry are of little value. They can't be scaled from, and they show only general boundaries. The land registry clearly state that.

 

Trees and buildings can't be used. Trees change shape, and grow, and any building, or buildings have to have been there when the site plan attached to the conveyance was drawn up. .Anything  that is not either discribed on the conveyance, or on the site plan attached to the conveyance can't be used.

 

The neighbour, can still claim adverse possession rights under the old rules, that were changed in 1990 i believe. He has no need to use the new rules.

 

If anybody wants to make a claim for a piece of land, that is not in there exclusive use, they are in for a rough ride. Even if the poster had an original site plan, that had clear points of origin, that could be used by an expert, and ascertained that the land was part of his original deeds. If he has been excluded from that land by means of a fence, etc, for a period of time. He would be very unlikely to ever get it back, unless he had a very, very nice neighbour.

 

To be honest, people like the poster get right up my nose. He bought a house, and got what he paid for. He got exactly what he expected to buy at whatever price he paid. He for whatever reason, (found an old plan, etc) now thinks he may own a piece of land that is in somebody else's posession. That extra piece of land may have indeed been part of the original conveyance, but it's long gone. When he purchased he got what he expected to get. Land up to the fence.....

[Thedreamer]

Does there not need to be dishonestly for theft to occur? Could this be just an accident.

 

 

[Mulberry View]

14 hours ago, Big Jimbo said:

To be honest, people like the poster get right up my nose. He bought a house, and got what he paid for. He got exactly what he expected to buy at whatever price he paid. He for whatever reason, (found an old plan, etc) now thinks he may own a piece of land that is in somebody else's posession. That extra piece of land may have indeed been part of the original conveyance, but it's long gone. When he purchased he got what he expected to get. Land up to the fence.....

 

Wow, what an opinion based on my one contribution to this thread!

 

To set some context, it's a large plot (1 acre) and I know a lot about it's history as it has been in the family for some time. We are boundary neighbours to 14 properties. I have a historic plot plan and have instructed a recent land survey. This was done for many reasons, not because we suspected any land loss, but what it uncovered were 2 instances of fairly substantial loss by way of 'shonky' fences that have crept in at some point in recent years. Nobody has attempted to formally claim the land and I'm not trying to make a grab for anything other than what is legally mine. One of the 'fences' is a run of chicken wire cable tied to some trees that was put in as an attempt to keep foxes and deers from crossing the gardens.

 

The house belonged to my late Grandmother, who was a highly intelligent woman, but in her final few years was very compliant to requests from her many neighbours. In one instance (not this one), a neighbour knocked on her door to notify her of his desire to put in a fence, being in her late 80's at the time, she had no interest in hobbling down the garden on her zimmer frame to check his desired line, so just allowed him to get on with it, which he did without any clear proof of the boundary line. It looks like there were a few instances of that.

 

So, @Big Jimbo, I didn't get what I paid for. This wasn't revealed until a proper survey took place, as it is a complex plot. If you read my original post, my question is more around what quantifies a claim for the land. There is not a substantial fence and we could argue over who planted the hedge, so what else stands in the way of me claiming what's mine and informing the neighbour of my intention to install a fence on the boundary that was established from the survey? I'd be willing to bet that, at this moment, the current owner of the property has no knowledge at all of what their predecessor (intentionally or unintentionally) did.

 

The square building with the cross is my neighbours garage, it was built on their original boundary line. Just beneath that is the measured fence. I'm not discussing the dog-leg part of the fence (there's another mainly irrelevant detail to this story), but the section to the right of that which is about 5-6 feet off the boundary line and tapers down to 2-3 feet over a length of almost 100 feet, so a fairly substantial chunk. Ignore the magenta line, it's a reference point. We, understandably, didn't suspect this when we bought, why would we? But why does that mean we are any less entitled to it?

[Temp]

Thanks for the update.

 

I guess first thing to do is have a friendly chat with them if that's possible. Do you actually want the land back or would you be interested in selling it to them?   

 

If they get all upset then you should write to them more formally asserting ownership keeping evidence you wrote and they received it.  If they put their property on the market write to the estate agent an ask them to contact the new buyer as well.

 

You might also check if you have legal cover included with your house insurance. It can be hard getting the insurance co to pay for a case but they might take it on if its clear cut.

 

In theory you can remove it without permission under common law on "abatement" but be careful. If he later proves you are wrong it could get expensive. It sounds like the neighbour owns the fence so if the fence is damaged in the process then you might find yourself on the wrong side of the law for that. If he calls the police they won't be interested in the land dispute, just in the criminal damage to his fence and any breach of the peace. If you go this route best do it while he is away on holiday and get the new fence up at same time.

 

You should avoid having to go to court if at all possible. I think legally they have created a trespass for which the remedy is an injunction, but where the trespass is small courts have been reluctant to issue one.  Going down the legal route..  If friendly discussion fails I suspect the next step would be to agree to some form of arbitration or possibly a solicitors letter pointing  out his liability for costs if loses.

 

 

 

[Mulberry View]

1 hour ago, Temp said:

Thanks for the update.

 

I guess first thing to do is have a friendly chat with them if that's possible. Do you actually want the land back or would you be interested in selling it to them?   

 

If they get all upset then you should write to them more formally asserting ownership keeping evidence you wrote and they received it.  If they put their property on the market write to the estate agent an ask them to contact the new buyer as well.

 

You might also check if you have legal cover included with your house insurance. It can be hard getting the insurance co to pay for a case but they might take it on if its clear cut.

 

In theory you can remove it without permission under common law on "abatement" but be careful. If he later proves you are wrong it could get expensive. It sounds like the neighbour owns the fence so if the fence is damaged in the process then you might find yourself on the wrong side of the law for that. If he calls the police they won't be interested in the land dispute, just in the criminal damage to his fence and any breach of the peace. If you go this route best do it while he is away on holiday and get the new fence up at same time.

 

You should avoid having to go to court if at all possible. I think legally they have created a trespass for which the remedy is an injunction, but where the trespass is small courts have been reluctant to issue one.  Going down the legal route..  If friendly discussion fails I suspect the next step would be to agree to some form of arbitration or possibly a solicitors letter pointing  out his liability for costs if loses.

 

 

 

 

In answer to your first question, there is the possibility of a negotiation with a piece of land at the other end of their plot that I would like to obtain. It would be a good outcome for me if we were able to have a friendly chat and I come away with the bit of land I would like (equivalent size) and not have to see them tear their garden up to return the fence to the 'correct' place.

 

But what is more poignant is trying to understand if we have already lost the piece of land and if not, ensuring we don't in the future with something we could have changed now.

[ToughButterCup]

Pick your fights.

Are you suffering a material loss? And if you are, what cost is a shrug of the shoulders? What's your risk appetite? 

 

After reading the whole thread, I 'feel' this might be one of those hiccups that could be dealt with very gently over a few years.

Theft might be a bit strong perhaps? 

[joe90]

@christianbeccy as you say, just have a chat and find their point of view, if they get arssy then decide if you want a fight, they might be perfectly ok about it and you may get the other price of land, nothing to loose having a friendly chat.

[Temp]

1 hour ago, christianbeccy said:

But what is more poignant is trying to understand if we have already lost the piece of land and if not, ensuring we don't in the future with something we could have changed now.

 

I don't think you have said exactly when it was fenced off or did I miss it?

 

From what you say they haven't made a claim for adverse possession or it would show up at the land registry. Take a look at the land registry "practice guides" on adverse possession and see if you think the current owner has met the requirements so that an application could succeed. How long has he lived there?

 

A claim for adverse possession requires land to be fenced off, with intent to possess, "to the exclusion of all others" so gates or gaps in fences can matter. 

 

If a land owner gives permission for someone to use land then possession isn't "adverse", so a claim for adverse possession could also fail for that reason.

[Big Jimbo]

Christian, lets start again. I can't understate how complex land law, adverse posession, fences in the wrong place etc is. You say you have a historic plot plan. Can you explain further ? Is it a plan that was drawn up at the time the land as it sits now (1 Acre)  was sold from a larger plot ? Perhaps when it was sold as a building plot ? Was the plan attached to that conveyance, and did it have the correct legal clause to direct the reader to refer to the plan (as being of more importance than the conveyance) ? Does the plan have clear points of origin, that both existed at the time the plan was drawn, and still exist today ? No offence, but how good is your surveyor ? Is he a member of RICS ? To give you some idea, The guy i used is probably one of the top 10 in the country. He has previously been involved in surveying the boundaries of countries on behalf of governments ! His survey cost me from memory about £8 grand. If you can give me the info requested above, i will do my best to assist. I will warn you again though, it is a minefield. In fact, i think i would rather take my chances in a minefield.

[Mulberry View]

5 hours ago, Temp said:

 

I don't think you have said exactly when it was fenced off or did I miss it?

 

From what you say they haven't made a claim for adverse possession or it would show up at the land registry. Take a look at the land registry "practice guides" on adverse possession and see if you think the current owner has met the requirements so that an application could succeed. How long has he lived there?

 

A claim for adverse possession requires land to be fenced off, with intent to possess, "to the exclusion of all others" so gates or gaps in fences can matter. 

 

If a land owner gives permission for someone to use land then possession isn't "adverse", so a claim for adverse possession could also fail for that reason.

 

I don't know when it was fenced to be honest. Our neighbour only bought their property about 2 years ago, so they won't know either. It's basic 4ft timber posts and chain link fence, that's all we know and it looks to be in quite good condition. That was really my point, if nobody can age the fence, how can adverse possession be claimed?

[Temp]

Hopefully it was less than 10 years ago. See if there is any evidence on Google maps. I think you can look back at old sat images.

 

 

 

[DachaidhDubh]

11 hours ago, Temp said:

Hopefully it was less than 10 years ago. See if there is any evidence on Google maps. I think you can look back at old sat images.

 

You can, you just need to get the 'Pro' (free) downloadable version: https://www.google.co.uk/earth/download/gep/agree.html

[Mulberry View]

On 10/09/2020 at 23:50, Temp said:

Hopefully it was less than 10 years ago. See if there is any evidence on Google maps. I think you can look back at old sat images.

 

 

 

 

Sadly doesn't help, our plot is fairly mature, so you can't see anything much apart from trees/bushes.

 

I'm going to rely on a friendly chat, just wanted to know the legal position if it comes to that. It would be almost impossible for anyone to age the fence I think, so cannot see how she could successfully claim rights to it.

 

Thanks for your help.

[epsilonGreedy]

On 10/09/2020 at 23:50, Temp said:

Hopefully it was less than 10 years ago. See if there is any evidence on Google maps. I think you can look back at old sat images.

 

 

A Google street car photo has been useful in my little boundary dispute. The 2005 photo shows a nearly dead hedge positioned where I believe the boundary should be. There is no sign of the hedge today, instead there is just an extension to my neighbour's lawn.

[Mulberry View]

10 hours ago, epsilonGreedy said:

 

A Google street car photo has been useful in my little boundary dispute. The 2005 photo shows a nearly dead hedge positioned where I believe the boundary should be. There is no sign of the hedge today, instead there is just an extension to my neighbour's lawn.

 

Oh wow!! Great news for you though.