Garden taken over by leaseholder

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Re: Garden taken over by leaseholder

Postby arsie » Mon Dec 16, 2013 5:45 am

Mac, read the OP's second post carefully you will see he says when the interloping leaseholder did away with the hedges.

But in all this we await clarification from the OP (or an expert), e.g. whether a leaseholder can gain adverse possession.
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Re: Garden taken over by leaseholder

Postby MacadamB53 » Mon Dec 16, 2013 10:26 am

Hi london13,

I've done some digging and think I can confirm no AP claim will be successful.

However, if a leaseholder encroaches on registered land not included in the lease, and has evidence of 10 years exclusive possession, then the land effectively becomes part of the lease for the remainder of the lease - see Smirke v Lyndale Developments. If you can object because he hasn't maintained exclusive possession ("allowing" you access just once in the past 10 years is enough) then his app is a dead duck.

You need to double-check whether any of the freehold land not demised in the leasehold is referenced in the lease. If the leaseholder has any granted right to access the garden then the above can be ignored and you just need to reinstate things as you wish.

All my non-expert understanding of the situation, Mac

edit: we could really do with someone like Conveyancer contributing. london13, I strongly recommend you seek legal advice from a solicitor specialising in property law.
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Re: Garden taken over by leaseholder

Postby arsie » Mon Dec 16, 2013 11:36 am

Going by the OP saying that the leaseholder in question took exclusive possession of all 3 gardens less than 2 years ago, the leaseholder/squatter would not appear on that basis to have a valid claim for adverse possession.

But it would be interesting to hear from the OP what basis if any there might be for the "18 years" of possession that the OP says has been mentioned by the squatter. My guess is, that might be when the leaseholder's ownership began as proved by his title deeds and that the said leaseholder/squatter is hoping there will be no way to prove that he did not occupy all of the garden area right from the start, taking advantage of the long absences of the OP's relative from his flat.

The OP mentions 3 flats and gardens, the 3rd flat being leasehold as well.

It would be helpful to the OP's side if he could get Statements of Truth from former or current tenants or occupants of flat 3 regarding use of and access to their garden. If the flat was tenanted, the tenancy agreement(s) will most likely have identified the use of one of the 3 gardens. It may be possible to get copies of these agreements from the leaseholder/owner of that flat who surely will have common cause against this other leasehold flat owner taking possession of his garden too. The squatter/leaseholder has taken on two opponents not just one.

It would be a good idea for the OP to get hold of all 3 title deeds from the Land Registry to check, which can be done online for a small sum. If there is more than one document for a property you need to look at them all.
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Re: Garden taken over by leaseholder

Postby arsie » Mon Dec 16, 2013 11:41 am

MacadamB53 wrote:Hi london13,

I've done some digging and think I can confirm no AP claim will be successful.

However, if a leaseholder encroaches on registered land not included in the lease, and has evidence of 10 years exclusive possession, then the land effectively becomes part of the lease for the remainder of the lease - see Smirke v Lyndale Developments. If you can object because he hasn't maintained exclusive possession ("allowing" you access just once in the past 10 years is enough) then his app is a dead duck.

You need to double-check whether any of the freehold land not demised in the leasehold is referenced in the lease. If the leaseholder has any granted right to access the garden then the above can be ignored and you just need to reinstate things as you wish.

All my non-expert understanding of the situation, Mac

edit: we could really do with someone like Conveyancer contributing. london13, I strongly recommend you seek legal advice from a solicitor specialising in property law.

I agree we need an expert opinion however the only case I can find with that name is from 1975 and was a tenant versus landlord situation which is not the case here. At http://swarb.co.uk/lisc/LanTe19701979.php it says

Smirk -v- Lyndale Developments Ltd 1975
The court considered the doctrine that a tenant acquiring title to land by adverse possession, did so on behalf of hs landlord. Held: The cases demonstrated that "the law … has got into something of a tangle", but the doctrine, at least as summarised by Parke B, appeared to be "in accordance with justice and common sense". If a tenant occupies land belonging to the landlord but not included in the demise, that land is presumed to be an addition to the land demised to the tenant, so that it becomes subject to the terms of the tenancy and must therefore be given up to the landlord when the tenancy ends. For there to be a surrender of an existing lease by operation of law because of the grant of a new lease,
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Re: Garden taken over by leaseholder

Postby MacadamB53 » Mon Dec 16, 2013 2:39 pm

arsie wrote:
MacadamB53 wrote:Hi london13,

I've done some digging and think I can confirm no AP claim will be successful.

However, if a leaseholder encroaches on registered land not included in the lease, and has evidence of 10 years exclusive possession, then the land effectively becomes part of the lease for the remainder of the lease - see Smirke v Lyndale Developments. If you can object because he hasn't maintained exclusive possession ("allowing" you access just once in the past 10 years is enough) then his app is a dead duck.

You need to double-check whether any of the freehold land not demised in the leasehold is referenced in the lease. If the leaseholder has any granted right to access the garden then the above can be ignored and you just need to reinstate things as you wish.

All my non-expert understanding of the situation, Mac

edit: we could really do with someone like Conveyancer contributing. london13, I strongly recommend you seek legal advice from a solicitor specialising in property law.

I agree we need an expert opinion however the only case I can find with that name is from 1975 and was a tenant versus landlord situation which is not the case here. At http://swarb.co.uk/lisc/LanTe19701979.php it says

Smirk -v- Lyndale Developments Ltd 1975
The court considered the doctrine that a tenant acquiring title to land by adverse possession, did so on behalf of hs landlord. Held: The cases demonstrated that "the law … has got into something of a tangle", but the doctrine, at least as summarised by Parke B, appeared to be "in accordance with justice and common sense". If a tenant occupies land belonging to the landlord but not included in the demise, that land is presumed to be an addition to the land demised to the tenant, so that it becomes subject to the terms of the tenancy and must therefore be given up to the landlord when the tenancy ends. For there to be a surrender of an existing lease by operation of law because of the grant of a new lease,


See the section I've highlighted in blue font.
This means a leaseholder ('tenant' the miscreant) can't claim AP of any of their landlord's (london13) freehold land which was not included in the lease (freehold garden). They can only claim it should now be included in the lease for the duration of the lease.

Hope that makes sense...
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Re: Garden taken over by leaseholder

Postby arsie » Mon Dec 16, 2013 3:31 pm

Indeed it does mac: but I can't help thinking if true that this will be cold comfort to the OP if there is many years to run on the lease. Leasehold is usually 99 years and these days 999 years is becoming common. There is still a slight question in my mind as a non expert as to whether the leaseholder is seen as a tenant in modern day terms or not: 1975 and the case that you cite was a long time ago. No offence but I would want an expert opinion.

I am urging the OP to try to establish the period of <2 years as the alleged adverse possession and to obtain evidence against any earlier date which would thus cause the application to fail.

There is also the questions of, is this registered or unregistered land and, would any application for adverse possession fall under the rules applicable before the Land Registration Act of 2002 (which may be the case if the adverse possession began 18 years ago)? In this regard I am recommending that the OP should check the title and deeds for all 3 flats to clarify the ownership of properties and the land in question.

But all round I think it is time the OP consulted a legal expert, as we argue the toss in the dark here :roll:
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Re: Garden taken over by leaseholder

Postby MacadamB53 » Tue Dec 17, 2013 4:37 pm

But all round I think it is time the OP consulted a legal expert, as we argue the toss in the dark here


agreed
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Re: Garden taken over by leaseholder

Postby london13 » Mon Jan 13, 2014 3:17 pm

Hi,

Thank you all for the replies. And sorry for this late post.

This particular situation is sorted now. I will try to reply to a few questions from the previous posts and also write what happened since I last posted here.

- The miscreant owns two leaseholds and each has a garden (leasehold too).
- No truth to the 18 years possession. 18 is just a made up number. Sometimes he claims it to be 15 years and maybe that is because 15 years ago he bought the leaseholds but he never lived here until just over 2 years ago.
- Relative was absent for 9 years but other members of the family lived here for many years until the last one moved out 2 years ago. I now live here for the last 6 months.
- Land is registered.

This is what we did:

-We removed the wood panel blocking access to our garden without damaging it.
-We put back our gate which the miscreant had taken off and left in the garden to rot.
-They noticed and took our gate off again, damaging the bolt. they barricaded the entrance with all sorts of heavy objects.
-We came and a heated argument started.
-They call other members of the family to help.
-Discussion was going nowhere plus we were threatened etc and we just said we are calling the police.
-Police came and we explained.Then police talked to them separately.
-They told police that we put the security of their property at risk by taking down the wood panel. Police commented if anyone wanted to get in they would just jump over the wall.
-Police then talked to us and we showed the deeds. All clear we have the right to the garden, boundary was shown etc.
-Police then talked to both parties and mentions a fence to separate the gardens.
-Miscreant got angry and asked about the squatting law.
-Police said it does not apply to gardens.

So in half day, fence is up, shed had been taken down.

It is obviously very unpleasant to live in the same building and I expect more crap to happen. Actually there are more issues I might be needing advice but I think it's best to start in separate new posts.

Thank you for following this thread.
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Re: Garden taken over by leaseholder

Postby arsie » Mon Jan 13, 2014 4:18 pm

Well done. Look forward to more threads :wink: Or, better, none at all and they stop being a pain. Good luck.
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Re: Garden taken over by leaseholder

Postby jonahinoz » Mon May 12, 2014 4:46 pm

Hi,

Is the Sqatter able to claim AP on the garden that he is leasing (and presumably paying ground rent on?) and the garden of another leaseholder.

Surely there was a right of access to all three gardens, and that acess should still exist?

Does the Freeholder usually have a right to inspect the property that is beiong leased?

OT ... I read of a case where a National Utlity bought part of a farm, but allowed the farmer to keep grazing his cattle thereon, until they were ready to develop. Years passed .... and the farmer claimed AP on his old fields. Sorry, I don't know the outcomer. Don't let this hijack the prime discussion.

John W
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Re: Garden taken over by leaseholder

Postby ukmicky » Tue May 13, 2014 10:09 pm

.

Tell me if im wrong with my understanding of the situation here ,if i am i will take another look at this one for you. .

The freeholder of the garden and the freeholder of the trespasser flat is the same person..

If so the only problem you have is how you go about evicting him .

Access to this land is via his freeholders land and as someone has said any adverse possession of this land is claimed on behalf of his freeholder . It would be a bizarre and weird situation where a leaseholder could claim adverse possession of land on behalf of the freeholder if the freeholder already owned the land. Due to this a leaseholder is legally barred from claiming adverse possession of land owned by his or her freeholder.

I would be tempted to send him a letter informing him of the above and warning him that as he is unlawfully trespassing on your property, if he fails to remove his possessions at once or by say 7 days you will sue him for trespass and the mesne profits for the two years that he has occupied the land. (Mesne profits is the rental value for the two years of occupation and is a legally acceptable court action for something like this)

In reality he has no legal protection when it comes to his occupation of this land as he has no adverse possession claim by law and is not living on the land . So you can enter and retake possession at anytime and remove any of his goods. .

Added note

There is a what if under section 62 of the LPA , If he was allowed to remain in occupation and then purchased his freehold whilst remaining in occupation
Advice given is not legally qualified and you are advised to gain a professional opinion
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