Small strip next to plot - purchase or adverse possession?

[howplum]

Having found a plot and just posted a question about one of the planning conditions requiring a turning area, I request your indulgence with an other question. I have not bought the plot, just made an offer subject to contract, and the owner and I are working together so that the purchase can be completed.

 

The plot is at the end of a short unadopted road which leads to a large commercial property, and is bounded on the front and one side by the road, which leads to the gates for the commercial property.  In between the east side of the plot and the road is a small, triangular, strip of land which apparently belongs to the Government(!).

 

On the plot there used to be a large barn, which has recently been demolished, but it had been there for decades, access to it being via a tarmac driveway built over the strip in question.  Historically the current and previous owners had used the strip of land as if it belonged to the plot, and even fenced it in accordingly.

 

Whilst I can build on the plot without using this strip, I cannot comply with the planning condition to provide a turning area, because I would have to pave over part of the strip. Also, to own the strip would be better, because then I could build a detached double garage (STTPP). Almost Catch 22.

 

The owner has been told by his solicitor to make an offer to purchase the strip, which he has done, but has now been told that the process could take up to a year, assuming the Government Property Office agree to sell.

 

I have read about "Adverse Possession" - is this an avenue worth exploring or are there any other options perhaps?

[Triassic]

As far as I’m aware, only the current plot owner can go down this route as it is they who have had the adverse possession.

[ProDave]

I just have a gut feeling the making an offer to buy it might have just killed an adverse posession claim as they openly admit it is not theirs.

 

The bit that is paved and used as access and has been for many years you may have acquired a right of access over even without owning it.

 

As this strip is only along one side, have you looked at alternative plot layouts that would take access from where your plot joins the track without crossing this strip?

 

Can you post a site plan showing this strip?

[howplum]

Thank you @triassic. What myself and the current owner are wondering is which is the best route to obtain that strip of land, outright purchase or claiming adverse possession. Potentially I could try and purchase the strip outright, but to do so so without owning the plot itself would be potentially a waste of money.

 

What are pitfalls relating to claiming adverse possession?

[jack]

Just now, ProDave said:

I just have a gut feeling the making an offer to buy it might have just killed an adverse possession claim as they openly admit it is not theirs.

 

Yep, that's my understanding too.

 

Plus if you buy it, I believe you reset the adverse possession clock as new own owner.

 

As Dave says, there may be easement rights associated with existing use that could carry over, but I'd check with your conveyancing solicitor about the details of that.

 

What about just applying for planning permission that includes this area as part of your turning requirements? There's no requirement for you to own land to get planning permission on it. The owner will be notified and can object, of course, but only on the basis of planning considerations. They could, of course, prevent you from actually using it according to whatever planning scheme you get approved, but that may be fine for your purposes.

 

1 minute ago, howplum said:

Potentially I could try and purchase the strip outright, but to do so so without owning the plot itself would be potentially a waste of money.

 

You could potentially agree to purchase subject to the required strip of land being acquired.

Re: it taking a long time, in my experience, these types of situations can be hurried along if you're willing to be the squeaky wheel. Get to know who's handling at the council (or whoever owns it). Make sure they understand that you're trying to get this sorted so you can start building your family home. Be friendly, and don't overdo it, but if you're calling or emailing every couple of weeks just to touch base and see how things are progressing, you may be surprised just how fast things might move.

 

4 minutes ago, howplum said:

What are pitfalls relating to claiming adverse possession?

 

The main one is that if the seller tries it on and isn't successful, you'll likely face a hostile reception if and when you subsequently attempt to negotiate a purchase. The upside is that the cost of proceeding with a claim is just the land registry fee and whatever your lawyer charges. That's likely to be cheaper than buying the land outright.

 

In your case, you'd also need to find out whether the seller offering to buy has affected any adverse possession rights that might otherwise have been claimed. I suspect they'll really need to speak to a specialist about this.

 

I'm sure you've seen it, but the Wikipedia article on adverse possession is a good starting point. 

[lizzie]

If an offer has been made to buy it you cannot make a claim for adverse possession.  Adverse possession means you have taken over the land without knowledge or agreement from the landowner and that has continued unchecked for x years therefore you have acquired a right to possession (if upheld). The person who may have had the claim has now asked the owner if they can buy it so acknowledges they have no rights to adverse possession.

[Jeremy Harris]

One issue may well be that the land doesn't actually belong to anyone.  We have that situation alongside part of the stream that runs through our village, and so far it's taken several years to try and resolve and the Parish Council are no further forward.  In our case the whole village used to belong to a local landowner, who sold off the individual houses and various plots of land (including ours) in 1915.  Unfortunately, the strip of land between a lane through the village and the stream was never identified in that sale, and the original landowner's inheritors in title are adamant that it isn't theirs.  It's not possible to build on it, and it's not used for any access, but it is now extremely overgrown and was a contributory cause of flooding around 5 years ago, as the stream is partially choked by all the willows and alders in that strip.  In the aftermath of the flooding the PC wanted to get the landowner to clear the obstructions, as they are required to as riparian owners, and that's when it was discovered that the land doesn't belong to anyone.  Volunteers now clear it every year, whilst the battle continues to try and establish ownership.  In our case no one can claim adverse possession as the land hasn't been used by anyone in living memory (it's only around 20ft wide at the most, and maybe quarter of a mile long).

[howplum]

Thank you everybody for your replies - all very helpful.  I attach a copy of the Land Registry Title which shows the plot in question, edged in red and including the word "barn". The strip of land in question is that shaded grey, which hopefully has scanned clearly.

 

Access to the front of the plot is fine, it's just that I would like, in an ideal world, to have a detached double garage on the widest part of the strip of land, although I have room for an integral double garage if needs must. At least it will be warmer in winter when working on the car(s)!

55 minutes ago, jack said:

What about just applying for planning permission that includes this area as part of your turning requirements? There's no requirement for you to own land to get planning permission on it. The owner will be notified and can object, of course, but only on the basis of planning considerations. They could, of course, prevent you from actually using it according to whatever planning scheme you get approved, but that may be fine for your purposes.

If I understand correctly, the Planning Permission does not differentiate regarding ownership of the land, i.e. the council seem to require the condition without checking on ownership, so perhaps the current owner applied on the basis that he owned it all.  Are you saying that the current owners of the strip of land can only object because they disagree with the proposed plans, and not simply because they want to adopt a "dog in the manger" attitude.

Land Registry title plan.pdf

[jack]

4 minutes ago, howplum said:

If I understand correctly, the Planning Permission does not differentiate regarding ownership of the land, i.e. the council seem to require the condition without checking on ownership, so perhaps the current owner applied on the basis that he owned it all.  Are you saying that the current owners of the strip of land can only object because they disagree with the proposed plans, and not simply because they want to adopt a "dog in the manger" attitude.

 

People can always object, even without a basis. For a valid objection though, they need to have a reason supported by law.

 

What I'm saying is that you don't need to own land to get permission that involves its use. For example, if I know your address, there'd be nothing to stop me applying for planning permission to knock down your house and replace it with a new one. The fact that you own the house is irrelevant in planning terms, and you wouldn't be able to stop me getting permission just because you own the land. The planners would advise the owners, just like the advise neighbouring properties.

 

Of course, getting planning means nothing - I can't actually implement what I get planning for, because it's your land.

 

There's a risk, but I'd be tempted to look into providing the required turning space by using that land on the assumption that an access easement already exists. I don't think it's something the planners would be interested in once they've ticked their box. The question would then become whether the owners of the shaded land want to fight you on the easement point.

 

That said, it would be cleaner if you could buy it outright, especially given your desire to build on it.

[Tyke2]

I had a similar situation and chose to deal with the owner - a local council. But they didn't even think they owned it. I paid them a sum to sign a document confirming that they had no rights to the area. I could have done the development and they would not have been able to prove ownership. But it would have been difficult for me to sell the finished property with the anomaly in the title.

[howplum]

9 minutes ago, jack said:

access easement

Thanks @jack, I'll suggest to the current owner that he raises that point with his solicitor.

 

[ProDave]

As i said on the other thread. I would turn the issue around, and suggest you buy just the bit on the title plan, and your main access at the front to that comes directly from the track.  Make the vendor responsible for creating the "public" turning space and he retains ownership (if he ever had it) of that bit.  It nicely keeps it as the vendors issue to get any permissions to create the turning space.

[Ferdinand]

I do not see how Adverse Possession can possibly apply, as the previous owner has already admitted that it is owned by someone else and has acknowledged that fact in writing by making an offer; he has already shot his own fox. Adverse possession is x years of open use, as if it belonged to you, with others excluded and unchallenged.

 

The other one ... establishing a right to use the access by long use ie a Prescriptive Easement .. May be a possibility. I think that requires 20 years of open ie not secret, documented proven use, without the owner’s permission.

 

Ferdinand

 

Edited October 12, 2018 by Ferdinand

[Ferdinand]

2 hours ago, howplum said:

The owner will be notified and can object,

 

I think the process is that the Applicant certifies that they have served notice on the Owner.

 

In any case, a PP simply does not address land rights or civil legalities, very wisely (!). Those must be negotiated separately.

 

Ferdinand

 

[ProDave]

The more I think about this, the more of a can or potential worms it is.

 

So PP has been granted with the condition the turning space is provided.  But the land the turning space will be on was not owned by the applicant that made the PP application. Did he serve notice on the owner of that land that he was submitting the planning application?  Did the owner respond or make any objection to the PP application?

 

The granting of PP for the turning space does not give permission from the owner to build it.

 

If you build the house on your land without the turning space, you will be in breach of a planning condition, and if they try to enforce it but you have not achieved ownership or permission from the owner, what do you do?

 

If the owner of that land knows this strip is vital to the development, he may value it as a ransom strip.

 

I would either be looking to amend the planning (might mean re submitting) to get a scheme approved entirely on the land shown in the title plan (preferably without the obligation to provide the turning space)  Or I would not be exchanging contracts on the purchase until an agreement is reached on the strip of land.

 

 

[howplum]

44 minutes ago, ProDave said:

So PP has been granted with the condition the turning space is provided.  But the land the turning space will be on was not owned by the applicant that made the PP application. Did he serve notice on the owner of that land that he was submitting the planning application?  Did the owner respond or make any objection to the PP application?

Good points. I need to quiz the seller for more details, although he very open and helpful, so hopefully he will put all his cards on the table, since it's in his interest, as well as mine, to get the matter resolved.

 

Negotiations about the strip are being dealt with by the Government Property Office, hence the potential 12 month timeline.

 

49 minutes ago, ProDave said:

If the owner of that land knows this strip is vital to the development, he may value it as a ransom strip.

 

That is my main concern, because if that situation transpires it may become uneconomic to buy the existing plot, since both are inextricably linked in order to be able to comply with the planning condition.

[howplum]

58 minutes ago, ProDave said:

(preferably without the obligation to provide the turning space)

Which is the subject of my other topic.

 

59 minutes ago, ProDave said:

Or I would not be exchanging contracts on the purchase until an agreement is reached on the strip of land.

I don't intend to. In fact, the seller himself said not to spend any money until the matter is resolved.

[Temp]

Check who owns the triangle yourself or get your solicitor to do a map search at the land registry. Do not rely on what the vendor says. What exactly do they mean by "owned by the government? Which bit of government?

 

Beware that the government or council haves duty to obtain best value for the tax payer when they sell assets. So watch out if it amounts to a ransom strip.

 

The rules on adverse possession say you have to occupy the land in the belief that you own it. So you have to maintain that pretence in all dealings with the land registry. Making an offer to purchase or doing a land registry search and reading the results might be sufficient to rule out any claim for adverse possession. The land also has to be fenced off "to the exclusion of all others" for around 10 years so that would preclude using it for the turning area. 

Edited October 15, 2018 by Temp

[Temp]

If you think the vendor might be able to claim adverse possession then i think it will take at least two years to resolve. I believe the real owner has that long to object to any claim. The process differs depending if the land is registered or not.

[Temp]

At the very least it sounds like the vendor should somehow formalise any right of access they have over the triangle of land. Speak to your solicitor about it. Once the plot is yours they won't want to know.

[howplum]

I spoke to the seller last night and he is pursuing purchase of the strip of land, although it may take some time, as mentioned before. However, it now seems there is a slight difference in the boundary of the strip and the land already owned by the seller, so he is arranging for a site visit by someone from the Land Registry, who hopefully will give a definitive answer.

 

In any event, I have told him that we only want to buy the plot if it includes the strip of land.

 

Anyway, thank you all for your replies, they have been most helpful.

[joe90]

Best of luck, let us know how it goes.

[KarlisR]

Hi howplum,

It sounds like that you need that plot in order for your planning to succeed and it is right you are pushing this. It feels like that the things are going down the “purchase” route. I believe that it would still be possible to work on the claim of adverse possession. But whether this would succeed or be a speedy process is another matter. Also, the adverse possession claim can only be made by the “claimant” who needs to prove the (1) uninterrupted factual possession of the land by the claimant for the requisite period of 10 years and (2) intention on the part of the claimant to possess the land during that period of possession.

Fingers crossed for you and wish you the best of luck with your business.   

[howplum]

Yes @KarlisR, the seller of the main plot is pursuing purchase of the side strip and is in contact with the appropriate person at the Government Property Office, but it could be many months before resolution. Still, on the positive side, it gives me an opportunity to more research and to declutter!