Boundary and Private access

Re: Boundary and Private access

Postby dubs » Tue Sep 10, 2013 5:40 pm

I'm not making myself clear on this Prescriptive Access, our property was Leasehold and an a fee paid to our land owner from 1973 until 2008 when we purchased the Freehold, I understand that Prescriptive Access cannot be claimed prior to 2008 due to us not owning the land, and Prescriptive access can only be claimed when both properties have been Freehold for the 12 year period.

I'm not 100% sure on this one.
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Re: Boundary and Private access

Postby arsie » Tue Sep 10, 2013 7:00 pm

dubs wrote:I'm not making myself clear on this Prescriptive Access, our property was Leasehold and an a fee paid to our land owner from 1973 until 2008 when we purchased the Freehold, I understand that Prescriptive Access cannot be claimed prior to 2008 due to us not owning the land, and Prescriptive access can only be claimed when both properties have been Freehold for the 12 year period.

I'm not 100% sure on this one.

Me neither.

I thought that prescriptive use runs irrespective of the ownership of the land and takes 20 years to establish. If you are legally advised that this is not the case then I really do apologise for my ignorance :?

As regards the paths I was simply noting that all of the semi detached dwellings on your side of the road (no's 38, 36, 34 etc) have the same layout, with a side passage access to the back door, and suggesting it is likely that no 40 was of the same pattern and ownership - why would it differ - no 42 has plenty of land on the other side from you for their own access.

I may have 'overstepped reality' in asking about garages. You can't make out if garages are built-in or not from the site plans of the semi detached houses no's 40/38, 36/34, etc. and anyway it is irrelevant to your issues.
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Re: Boundary and Private access

Postby dubs » Sun Sep 22, 2013 6:08 pm

After collecting all the information we can on our boundary dispute with our new neighbour it would be very helpful if you could advise on the following question.

Our new neighbour purchased this detached property number 42 next to our semi-detached property number 40 in 2010 and would I presume have been issued with a conveyance pack from his solicitor with the Land Registry Title Deeds and Title Plan for him to view and comment if required.

The RIC surveyors on site survey and report agrees with the Land Registries Red Line boundary plan especially with the detached house number 42 being a large part of the Physical boundary in dispute.

The paper plan copies the Land Registry has filed match the Land Registry red line boundary markings on the registered Title Plan.

Why is it then we must bare all the costs in surveys, paper copies and possible solicitor fees because our neighbour refuses to accept all the evidence that the Land Registry boundaries are correct should not the onus be on our neighbour to prove if at all possible that the boundary is not correct.

And with all the evidence showing that the Land Registry boundary is correct can I not therefore make my property secure.
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Re: Boundary and Private access

Postby dubs » Sun Sep 22, 2013 9:20 pm

• Issued with a conveyance pack from his solicitor with the Land Registry Title Deeds and Title Plan for him to view and comment if required in 2010.

• The RIC surveyors on site survey and report agrees with the Land Registries Red Line boundary plan especially with the detached house number 42 being a large part of the Physical boundary in dispute in August 2013.

• The paper plan copies the Land Registry has filed match the Land Registry red line boundary markings on the registered Title Plan in August 2013.

We were unaware of our LR Boundaries until our neighbour attached a copy of his Title Plan to a letter to instruct us to relocate a dividing back fence in July this year.

The neighbour would only purchase what was shown on the LR Title deeds and plan with his solicitors conveyance pack in 2010.

I don’t think you have read fully or grasped the full issue here or even viewed the boundary plans or your comments would link in some way to the issues raised.
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Re: Boundary and Private access

Postby arsie » Sun Sep 22, 2013 9:58 pm

pinkie wrote:
dubs wrote:Why is it then we must bare all the costs in surveys, paper copies and possible solicitor fees because our neighbour refuses to accept all the evidence that the Land Registry boundaries are correct should not the onus be on our neighbour to prove if at all possible that the boundary is not correct.

And with all the evidence showing that the Land Registry boundary is correct can I not therefore make my property secure.


You have, to a large extent, created a rod for your own back by failing to secure your land to its fullest extent since 1973. Your neighbour purchased what he saw on the ground and you now find yourself in the situation that your neighbour may have acquired rights over your property. Your neighbour is doing nothing more than you in defending what he considers to be his land. This is a situation where compromise and perhaps mediation would be the preferred way forward.


Dubs, I sympathise greatly. However unjust it may seem, what pinkie states, is the situation! You did not realise until the new neighbour came along and set about defending what he thinks he had bought, that you had gone along with this trespass on your land all these years.

In order to correct matters, you will have to bear the costs to re-take your land and hopefully eject the right of passage that has been accepted by you and the neighbours since 1973. As much as you feel yourselves in the right and that all the maps, plans etc agree with your (newly realised) position, the neighbours/predecessors have used the gate unhindered and walked down your path unhindered all the time. The onus - and expense - is now on you to stop them using the gate from this time forward.

Your other thread seems to have concluded, that a prescriptive easement could only have been acquired from freehold to freehold, and your property has only been freehold since 2008, I think you said. So it only remains to find out how long the neighbours property has been freehold, to feel safe that an easement has not been gained. Once you have certainty on that, you can take such action as you see fit to defend your land. The onus will then be on the neighbour to counter your actions.

Others on here are experts, but it seems to me that, once you have certainty on the law regarding easements, you must write a solicitors letter telling the neighbour to stay off your land, and why, and trespass no more. And certainly to not remove such fences you may wish to erect on your property. If there is doubt about who is responsible you can erect fences 100% on your own land not on the boundary line itself.

Once the letter has gone, with appropriate warnings about legal action, the next step would be an injunction.

Experts?
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Re: Boundary and Private access

Postby arsie » Sun Sep 22, 2013 11:28 pm

pinkie wrote:@arsie, I believe that the position as regards whether an easement has been obtained is rather more complicated than you suggest.


I accept it may well be more complicated and await enlightenment. What I said came from you/or was it Pilman? posting:- to the effect that prescriptive rights could only be obtained freehold to freehold. If the OP was on a long leasehold (and presumably the neighbour was too) then it was not possible to gain a prescriptive easement. I myself bought a long leasehold property in 1999 which I then managed to convert to freehold without pain within a couple of years unchallenged. Fortunately there was a residents' association and this issue was aired early on. The situation where the OP has remained as leasehold from 1973 on purchasing new until 2008 is quite a bit different.
Last edited by arsie on Mon Sep 23, 2013 5:46 pm, edited 1 time in total.
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Re: Boundary and Private access

Postby dubs » Mon Sep 23, 2013 5:41 pm

We do appreciate the helpful advice and knowledge that this forum shares with us and others, most of it helpful and in line with the paper evidence we have, some of it a bit patronising but we take in all on board.

To finalise this issue before deciding to bring a solicitor in, with all the Land Registry, RIC’s Survey evidence and the fact that our neighbour would have had full access to the same evidence via the conveyance package in his possession in 2010 when he purchased the property, would we not be within our rights to gate off the disputed path and block off his rear garden gate access to our property and let our neighbour take action to resolve this dispute.

The Land Registry Office advised by email that the onus is on our neighbour to object to the boundary if he has grounds.

Or if we did do this would he be within his rights to remove these.

The end line is we are only after defining the correct boundary between our properties and the ROW can be resolved once this boundary is established.

Do we get Solicitors involved or do we take matters into our own hands.
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Re: Boundary and Private access

Postby pilman » Mon Sep 23, 2013 7:20 pm

After seeing the plan with a path marked on it and a gate into the garden behind 42 I would have asked if a right of way was granted to number 42 when the property was sold by the developer.

Once I knew the answer to that question I would know for a fact if a right of way existed, because it is a fact under English law that a neighbouring property cannot create a right of way by prescription over long leasehold property.

As for the boundary position, the fact that the side wall of the house at 42 is the boundary for that property could not be any clearer.
For 42 to claim differently is ridiculous.
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Re: Boundary and Private access

Postby arsie » Mon Sep 23, 2013 8:19 pm

@dubs: in answer to your question, please do not take the law into your own hands. You are no doubt concerned to finish this intrusion and lead your own quiet lives. I sympathise. But I suggest you finish your research - almost there - and then engage a solicitor to act. The first of which I would think is a solicitor's letter to no 42 stating the legal position: that you own the land, as shown on the plans, and that no right of way exists for no 42 from their back gate across your land. Put no 42 on notice that you will be closing off the gate and erecting such boundary fencing as you wish.

Before that, I suggest you just confirm the date when no 42 gained freehold title because that date, in conjunction with your own freehold title dating from 2008, marks the earliest time from which prescriptive use could lead to an easement i.e. both properties were freehold. (Pilman's advice being, no prescriptive use can accrue on a leasehold property. No offence to pilman but that is what you need to hear from your solicitor or you should engage one who knows what he is talking about ;) Plus, pilman, quite rightly, suggests you double check that no right of way was given to no 42 when it was originally sold by the developer, presumably in or soon after 1973 when you bought your own property as new, leasehold.) I would want to know for completeness at what point in time no 42 went from leasehold to freehold, if possible. The deeds should tell.

This will cost a few £hundreds at least in solicitors bills (£150/hour here in Norfolk) but money well spent.
edit: Pilman's right it was £250 plus VAT. Memory ... :roll:

If money is a problem then surely legal aid is applicable? I would ask the Citizens Advice Bureau.
Last edited by arsie on Tue Sep 24, 2013 7:52 am, edited 1 time in total.
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Re: Boundary and Private access

Postby pilman » Mon Sep 23, 2013 11:24 pm

No offence to pilman but that is what you need to hear from your solicitor
Who in my area will charge at least £250+VAT an hour, to explain that English law is absolutely clear about the fact that it is not possible to gain a prescriptive easement over land that is tenanted, unless that prescriptive period started when the freeholder was still in possession of the land.

If the owner of 42 moved into that house before the house at 40 was sold, then it may have been possible to claim the prescriptive period started in 1973 when the freeholder could have been aware of it.
In that case if 20 years use continued during the leasehold tenancy, a prescriptive right of way could have been created.

It would now need positive evidence that the owner of 42 in 1973 did start using the side passageway between the two houses to reach the back garden in 1973 before th eleasehold title for number 40 was sold and such use continued unabated for the next twenty years.

That will require the current owner of 42, who bought it in 2010, to provide Statutory Declarations, or Statements of Truth, from all previous owners during that 20 year period to prove to the court that will deal with such a claim that this was the case.

If the poster knows that this did not happen, then the only period that can be used to show a prescriptive period has been started is from 2008 when the new freeholder (the original Tenant) became aware of such use of his land by the neighbouring property and was legally capable of stopping such use.
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Re: Boundary and Private access

Postby dubs » Sun Apr 10, 2016 11:38 am

We have finally had our day in court for the above boundary dispute (First Tier Tribunal Hearing) on the 1st March 2016 with our Determined Boundary and rear garden fence Adverse Possession applications being successful and the other party’s front garden Adverse Possession also being successful.

We are grateful for the advise we received on this forum which was helpful as we represented ourselves at that Hearing.

We are pleased with this decision until we read in detail the decision on Mr Smith’s Adverse Possession which is based on the Leasehold Title we discovered during this dispute is still on our property even though we purchased the Freehold in 2008 for £3800 (both are shown on the Land Registry site)

We also applied for these titles to be merged in November 2014 via an AP1 Land Registry form and paid the £40 fee; this has not yet being fully processed by the Land Registry.

With the Judge’s decision relying on the old Leasehold Title does anyone on this site have any advise or experience on this type of issue as not only does it affect the Judge’s decision on the Adverse Possession application but also the possible award of our costs as she has stated that with there being no overall successful party she is minded not to award costs.

Any advise appreciated.



We have now digesting the full content of Judge Elizabeth Cooke decisions and in particular paragraphs 70 and 71 below on Mr Smith’s successful application for Adverse Possession of part of our front garden strip on the above case.

The more I read the Judge's decision on Smiths front garden Adverse Possession being successful against our old Leasehold Title the more unjust it seems to us, see paragraph 70 and 71 below.

We were not to concerned about the front garden area but when you take the Judge's ruling on Costs into account stating that with Mr Smith being successful on his Adverse Possession there is no overall successful party it becomes very important.
With us paying thousands of pounds for the Freehold in 2008, about £3800 if I remember correctly, surly we are the Freehold Owners of our property and the time to claim Adverse Possession starts running again.

I did mention this particular issue to the Judge at the Hearing and at first before lunch, she said she was not sure, after lunch she made a quick remark to me stating adverse possession could be claimed.

The Judge is more than lightly correct but I would like to know your thoughts on this, as again it seems unjust that through no fault of our own and after paying thousands for the Freehold it is not working in our favour.

70. The law of adverse possession is about the bringing to an end of the right to take
action; if a landowner does not remove a trespasser by bringing an action against him
within 12 years (under the pre-2003 law) then the right to remove the trespasser comes
to an end and the landowner's title is lost. The complication that arises when land is
let is that while the lease is running its course the freeholder cannot remove the
trespasser because he does not have possession of the land but once the lease comes
to an end, time starts running again. In 2008, Mr and Mrs Davis bought the freehold to
their house. The freehold and leasehold titles have not merged. The freehold title
remains unaffected by the adverse possession.

71. Accordingly Mr Smith’s application on Form ADV1 succeeds and I have directed the
Chief Land Registrar to give effect to his application as against the leasehold title
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Re: Boundary and Private access

Postby arborlad » Sun Apr 10, 2016 12:06 pm

dubs wrote:We have finally had our day in court.............his application as against the leasehold title



dubs - not sure if you're aware, but you have started another thread with an identical post to this. I assume this was accidental and you still have time to delete it before things get confusing :)
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Re: Boundary and Private access

Postby dubs » Sun Apr 10, 2016 12:15 pm

Added it to previous post but then thought i needed to change the subject title so posted new, is there a problem leaving both the more feedback the better.
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Re: Boundary and Private access

Postby arsie » Sun Apr 10, 2016 12:32 pm

Hi dubs long time no see. Well done for persevering and winning 2-1. I hope this hasn't blighted your life too much although I find that as long as I don't get too wound up there is nothing wrong with having an interest and a cause to fight. As you say though it seems a little unfair on the costs but no costs award is better than what could have been if you had been found completely in the wrong.

I would take issue with the Land Registry why they have not actioned your application to merge titles after so long. Is there a complaints channel for them to reimburse your resulting unpaid costs?

I would make representation - if you have a right to do so - asking for a 'stay' by the judge pending HMLR's response assuming the outcome on Mr Smith's AP application would have been affected had your title as freehold, granted in 2008, been merged as you requested well before the court hearing.

After all this time the pics and plans you posted are no longer accessible? I for one have forgotten the details. It may be helpful to put them up on a 'cloud' web site for us to see. The URL button can then be used to post hyperlinks to them.

Again well done it is nice to hear a report of a (mostly) successful outcome.

edit: dubs, two threads will be confusing henceforward I think. Posting here has alerted those who had responded to the original thread but I think you must decide one way or the other. You need to post the pics anew so I would do that in one place then make that the active thread. You can post a link to one thread from another so people can read the old history.

My preference (nothing since Nov'13 and it is now Apr'16) would be your new thread as you have been to court on the original topic and you now raise a new problem re your merging of titles application.
Last edited by arsie on Sun Apr 10, 2016 12:51 pm, edited 3 times in total.
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Leasehold & Freehold Titles on our property

Postby arborlad » Sun Apr 10, 2016 12:40 pm

dubs wrote:Added it to previous post but then thought i needed to change the subject title so posted new, is there a problem leaving both the more feedback the better.




It's more a question of the advantage of sticking to one thread.

All of the background and history are here.

Images of plans and deeds (which do need updating) are here.

Anyone who has posted on this or subscribed to it, will get an automatic e-mail alert to your new post/s.

You can also change the title on each post, as I have just done.
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