Garden taken over by leaseholder

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Garden taken over by leaseholder

Postby london13 » Sat Dec 07, 2013 11:35 pm

I am writing on behalf of a relative whose problem is as below and hope to get some advice please.

My relative owns the freehold of all 3 flats of one building but only one of these flats is his and the garden belonging to that flat. He has been away for a while and in meantime the leaseholder moved into one of the flats (so he does not rent it out anymore) and has also taken over my relative's garden by building a huge shed on it and blocked the entrance of the garden plus cultivated the land etc etc.
After a lot of discussions and other complications etc, the leaseholder does not want to revert the garden back to its original state and is lying about many things. Bottom line is it sounds like he wants to claim the garden as his, based on the 10 years rule of cultivating an abandoned land (even if it's not true that it was abandoned).

One thing we think of doing is to just unblock this door by ourselves but we have to jump into the garden from the wall and do it from the inside. Later on to disassemble the shed by ourselves and put all his belongings onto his side of the garden.
Would it be advisable to give notice to do this or just do it? Like give a date for him to do this and say if not, we will unblock the door and disassemble the shed by ourselves?
We did write him that this should be done by a date but he has not done anything.
Would it be advisable to give a statement to the police (even if they won't get involved in this matter) before we act on anything so there is also record that we complained about it?
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Re: Garden taken over by leaseholder

Postby despair » Sun Dec 08, 2013 1:05 am

If the deeds are clear about the garden belonging to the freeholder then i cannot see how leaseholder can aquire any kind of possession of the garden

Just how long has the freeholder been away ?

Exactly how long has the garden been taken over like this
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Re: Garden taken over by leaseholder

Postby MacadamB53 » Sun Dec 08, 2013 1:19 am

Hi london13,

One thing we think of doing is to just unblock this door by ourselves but we have to jump into the garden from the wall and do it from the inside.

Yup - do this. You've no need to give him notice and you've no need to remove his items.

Does he have a right to access the garden as part of his leasehold agreement?

If so then he cannot claim ownership by adverse possession.
If not then just make all access secure and then your relative could send him a letter asking him to reply if he wants to arrange to collect his things from their garden or if he'd like to buy their garden at a laughably low price. Be sure to make it clear the garden belongs to your relative (but don't mention his squatting). On receipt of his reply you have evidence he's acknowledged he doesn't own the garden and any ideas he had about claiming AP are therefore kiboshed.

This is all just my humble, non-expert suggestion...

Kind regards, Mac

edit: just realised your relative is the freehold landlord so no AP can be claimed so no need for any letter.
Just jump your wall secure your premises and make arrangements for his items to be collected/delivered.
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Re: Garden taken over by leaseholder

Postby arsie » Sun Dec 08, 2013 5:54 pm

I am curious how the squatter gains access to the garden. As has been said, any rights of way or access over the garden for him would preclude adverse possession, since having permission to cross land means it can't be or become yours.

Do you know exactly how long he has been occupying the garden? Can the other flat leaseholder/tenants say? Do they have rights of way or access?

It sounds as if he has fulfilled some of the requirements, by keeping all others out, but for how long?

edit: I agree with Mac's advice to take action without further ado.
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Re: Garden taken over by leaseholder

Postby despair » Sun Dec 08, 2013 9:10 pm

Ditto
Take photos
Act dont argue
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Re: Garden taken over by leaseholder

Postby london13 » Thu Dec 12, 2013 11:41 pm

Thanks to all for your replies on this matter.

The freeholder has been away -on and off- but there was always someone living at the property up until 2 years ago. That is when this problem happened. The leaseholder took the opportunity to invade the garden. The garden had a door but he removed it and blocked it with a large wooden plank.

All gardens were only separated by a small hedge and he removed all and changed the lay-out completely. The 3 gardens all had separate gates and by blocking all doors, the leaseholder is the only one able to access the 3 gardens now.
He has only started living here for just over 2 years (he rented the flats to others previously) but claims he has taken care of the 'abandoned' garden for 18 years. (don't know where he gets this figure from)

Looking at how things are, the door that needs to be unblocked might be partly obstructed by the shed and we will have to damage the shed partly. Is it in our right to destroy a bit of it so we can unblock the door? Or will we be liable to pay him compensation for damaging his belonging which is actually found on our part of land? Also for any possible damage to any items in that shed?

So if I am understanding this right, he can never claim adverse possession if he does not own the freehold?
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Re: Garden taken over by leaseholder

Postby MacadamB53 » Fri Dec 13, 2013 12:32 am

Hi london13,

I'm no expert, so you might want to get this verified by HMLR, but I believe a leaseholder cannot claim adverse possession against their own freehold landlord like this chap thinks.

Regardless, he's not got a case if what you say is correct because he's only been there two years.

How are the gardens fenced?

Kind regards, Mac
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Re: Garden taken over by leaseholder

Postby london13 » Sat Dec 14, 2013 1:09 am

Thanks. Will try to find out more.

There is no fencing in between any of the 3 gardens (used to be just short hedges), just fence and walls all around the boundary so basically the 3 gardens have become just 1 now.
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Re: Garden taken over by leaseholder

Postby MacadamB53 » Sat Dec 14, 2013 1:20 am

Hi london13,

So there's nothing to stop you scaling the perimeter fence/wall and reasserting possession on the ground.

Is there a reason, other than doubt, why this hasn't happened yet?

Kind regards, Mac
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Re: Garden taken over by leaseholder

Postby arsie » Sat Dec 14, 2013 10:43 am

MacadamB53 wrote:Hi london13,
I'm no expert, so you might want to get this verified by HMLR, but I believe a leaseholder cannot claim adverse possession against their own freehold landlord like this chap thinks.

Regardless, he's not got a case if what you say is correct because he's only been there two years.


@london13: what have you found?

Assuming it is as mac says then you simply need to confirm a legal course of action. I am no expert but I believe the first thing you must do is write to the trespasser explaining his illegal act(s) and giving him reasonable time to return the land to its proper state i.e. others' use, access, boundary features etc. By sound of it he needs to move, if not remove, his shed. Any competent solicitor should be able to help. If you do the spade work first i.e. brief yourself on the legal position, draft the letter, it should not take long. Solicitors often give 15 minutes or so for free, thereafter charge time in 1/10ths of an hour - well, mine does. Your letter needs to go out recorded signed for. In legal speak it is known as a 'letter before action', in other words, a warning that you will take action possibly legal action if he does not correct the situation. How long to allow as 'reasonable time' is really common sense depending what you ask, but any solicitor with experience can advise.

edit: If the miscreant does nothing you can follow up with a short sharp letter from your solicitor. But one step at a time!

Unless you live near and have the time and are prepared for the consequences of civil war, I would not advise direct action.
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Re: Garden taken over by leaseholder

Postby london13 » Sun Dec 15, 2013 12:00 am

MacadamB53 wrote:Hi london13,

So there's nothing to stop you scaling the perimeter fence/wall and reasserting possession on the ground.

Is there a reason, other than doubt, why this hasn't happened yet?

Kind regards, Mac


First my relative wanted to come to the UK to sort it out by himself and thought that everything would be back to normal after a talk with the leaseholder. The latter agreed to sort this out and when my relative left the country, he just ignored everything.
I am left with the issue but concerned about the points mentioned in my previous posts. (unblocking the door while damaging part of the shed)

I found that it is actually possible to claim freehold land after occupying it for 10 years:

''A squatter who has been in exclusive possession of freehold land for 10 years may apply to the registrar to be registered as the freehold owner in place of the registered proprietor.'' http://www.solicitorsjournal.com/litiga ... %99-rights

''For freehold properties, a claim can now be made after 10 years, whereas a leasehold property must still be occupied for 12 years. In either case though, the owners of the property are now notified of the claim and asked whether they give permission for ownership of the land to pass to the claimant. If the owner refuses, the claim will not go through.'' http://houseconveyancing.org/adverse-possession/

Anyway, to me it starts sounding ridiculous that I should ask permission to go into the garden belonging to the flat I live in. The leaseholder is ignoring me/my relative asking him to unlock the door and remove his shed. He only replies via his solicitor saying he has spent the last 18 years taking care of the garden so we cannot ask him to do this. That he would need time for removing the shed etc. Which makes me believe he wants to claim possession of the garden by dragging time further.
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Re: Garden taken over by leaseholder

Postby arsie » Sun Dec 15, 2013 12:44 am

london13 either he has been in possession for 2 years (as you say) or 18 years (as he says)? Regardless, as a leaseholder only he cannot claim adverse possession of the freehold. So get together your evidence and write to him giving notice to get off your land as I explained. You had best read this http://www.landregistry.gov.uk/professional/guides/practice-guide-4 the official guide. The links you found are unclear and from solicitors tarting for business. Go talk to a solicitor and get him to write telling him to get off your land and to remove his stuff.
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Re: Garden taken over by leaseholder

Postby MacadamB53 » Sun Dec 15, 2013 11:53 am

Hi london13,

He has only started living here for just over 2 years (he rented the flats to others previously)

So is there just one leasehold for two flats with gardens, or is there two separate leaseholds?
Could there be any truth in his claim of 18 years possession? (why 18?)

Kind regards, Mac
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Re: Garden taken over by leaseholder

Postby arsie » Sun Dec 15, 2013 1:44 pm

In his first post the OP states he owns the freehold of 3 flats.

Later on he mentions there were 3 gardens divided by low hedges which the miscreant has grubbed up in his 'squat' on all the gardens. The OP also says the miscreant has lived there himself for less than 2 years. My guess would be, the miscreant bought the leasehold 18 years ago and that is his preferred baseline for claiming adverse possession. But that actually all 3 gardens functioned separately until the time that he moved in and blocked the access.

It shouldn't be too difficult to disprove his claim (a) on the basis he is only the leaseholder not owning freehold and (b) until 2 years ago others were lawfully enjoying the use of the garden land.

Pending a solicitor's opinion as regards (a) I would go get Statements of Truth from previous tenants for (b): CYA.
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Re: Garden taken over by leaseholder

Postby MacadamB53 » Sun Dec 15, 2013 9:59 pm

Hi arsie,

If you read the original post carefully the OP never mentions how long his relative was absent and also only says the garden being "abandoned" isn't true.

I'm now wondering whether the relative has been away for +10 years and the leaseholder has indeed tended the 3rd (freehold) garden as his own.

We'll have to wait for london13 to clarify...

Kind regards, Mac

edit: The OP doesn't put a timeframe on when the low hedges were last in place.
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