Boundary encroachment

Boundary encroachment

Postby sorrylarch » Tue Jun 16, 2015 11:50 am

I live in a ground floor conversion in a road of Edwardian terraced houses in an urban suburb. To the rear of my garden approx. 60 foot (basic rectangular shape), there are 2 gardens which abut mine, this is where the boundary issue is.
This issue came to light when I began to landscape the rear of my garden and wished to have an ash tree felled- I checked against the title deeds and this tree was clearly within my footprint. I managed to contact the affected neighbour, spoke to him all quite reasonably, he granted me access to pick up branches etc. and the tree was felled. At this point I noticed that the boundary features were incorrect by more than 1m and that he had built some decking on what I thought was “my land”. Next to his property the land owner had also encroached by more than 1m (still opposite me to the rear) and I managed to speak to him over the fence which was all quite amicable at first. I outlined that I felt that he (having only living there for a few years) or the previous occupant had encroached onto my land and I wished to erect a fence at the correct boundary. He sent me a long email having researched the matters on the internet himself, boundary law, adverse possession etc. etc. finally stating that as I was challenging the boundary I should pay for a survey and that he was happy to follow their recommendations / conclusions. Which I did and forwarded the report to both parties, just recently. The surveyor broadly outlined that ‘this was entirely obvious’, relocate decking / shed and build a boundary fence approx. 1100mm from where the boundary features are now (the OS map is surprisingly detailed and the interpretation aided by a common footpath which runs between the neighbouring properties as mentioned below.)
Context:
I have lived in my flat since 2007, the 2 neighbours at the back for about 3 or 4 years each, so no opportunities for “adverse possession” here? There has never been a border fence to the back left, just some bamboo “whicker” a sight screen covered in ivy that had been tied to a fruit tree which had died and I subsequently felled. There is now no division between this property and mine which is nuisance, although the tenants at this property have been quite reasonable whilst we try to resolve this. To the back right (still opposite) the boundary is made from an encroaching shed and 2 fence panels that have been cobbled together (without any fence posts) at a funny angle. And because they are now exposed to the wind are beginning to fall apart. It is my feeling that when this shed was relocated to its current position somebody bodged the fencing around it- the panels are not secure (infact cut and shaped to accommodate the shed) and there are no fence posts to hold them upright. One other consideration which would corroborate the surveyors report is an access pathway which divides the majority of the properties along our 2 roads- except for ours where access is achieved to the left or right at the end of the garden (except for mine) because the boundary location is short by just over 1M. You might question why I am going to all this hassle- I just rebuilt all the fencing to the side of my property and it is a massive effort to do- why knowingly build fencing in the incorrect location? Also it would restore my access to a pathway (ROW or not) that runs between adjoining properties so I can get lumber delivered to build my shed. Finally the property with the encroaching shed has higher ground than mine by approx. 1 foot which would need “sureing up with concrete”- as above why go to this effort and do this in the incorrect location?
Moving on / what are my options?
From recent communications I feel that the shed owner neighbour is going to rebuke his initial statement, reply with some nonsense comments / dispute the surveyors report and a “boundary dispute” would result. What is strange is that his property is on the market and he would legally have to declare this dispute which would make his sale very difficult / impossible- likely that he has not declared this yet to his estate agents.
What is the best course of action if he stands down from his original comments and ignores all this in the hope that his sale goes through and it will become “someone else’s problem”?
a) Am I entitled to physically move his shed and instate a boundary fence where the surveyor stipulates (ie1100mm from current boundary features) if he ignores a 14 or 21 day notice of trespass / encroachment? Would get ugly surely.
b) At what cost an injunction for him to have his shed moved? Is this practicable, or instigate legal proceedings re trespass?
c) I could argue that he gets the land surveyed (again) at his own cost although this is unlikely to achieve anything because the physical features are so obvious and would only lead to a similar conclusion.
d) Alternatively coerce into amicable conclusion, ie help him move his shed and then erect a fence afterward, obviously my preference!
Any other advice / opinions would be gladly appreciated.
sorrylarch
 
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Re: Boundary encroachment

Postby Bonja » Wed Oct 21, 2015 12:55 pm

sorrylarch

I find myself in a similar position but on the other side. My neighbours of 15 years are trying to 'landgrab' and realign the boundary fence which is in the same position as it was 30 years ago. I wont go into the complicated and stressful background but what I would say is that I would like to sell my house but because of the dispute I get the impression that it would be difficult/impossible. So your neighbour, if he hasnt already sold, should be declaring the dispute or you could politely remind him of his responsibility to do so. He will be in trouble if the sale has gone through and not told the new owners, especially as you have gone to the trouble of employing a boundary determination surveyor. I am afraid my problem, even though I am in the right and have a solicitor to back me, looks like it will run and run so your neighbour could be faced with the same problem if he doesnt agree the boundary. Good Luck
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Re: Boundary encroachment

Postby COGGY » Wed Oct 21, 2015 2:46 pm

Have you checked on your deeds to confirm that this land belongs to you? If the deeds are at the Land Registry you need to get the information from there. Are you still speaking to the neighbour? If so you could politely remind him of his obligations to disclose this dispute to any purchaser. Then I would follow up this friendly exchange with a friendly letter, confirming your advice on the matter, sending such letter by Recorded Delivery. Keep a copy of the letter and print a copy of the receipt which he will sign in order to receive the letter. It might be best not to tell him you are sending such a letter, just in case he then refuses to receive it. Good luck.

Kind regards Coggy
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Re: Boundary encroachment

Postby jonahinoz » Sat Oct 24, 2015 7:39 am

He sent me a long email having researched the matters on the internet himself, boundary law, adverse possession etc. etc. finally stating that as I was challenging the boundary I should pay for a survey and that he was happy to follow their recommendations / conclusions.

Hi,

What is the legal "weight" of such an email?

Not only would he be going back on his offer, that offer persuaded you to pay for a survey. However, it does suggest that he was uncertain about where the boundary lies.

If your property has ever had rights, expressed or prescriptive, to access the footpath, then those rights should still exist. Who owns the footpath? Perhaps somebody with more knowledge than myself can comment on the effects of estopal (sp?) on what I assume is Leasehold property.

A big sign in your garden, saying DISPUTED BOUNDARY, might concentrate your neighbour's mind. Better to upset an outgoing neighbour than a incoming.

John W
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Re: Boundary encroachment

Postby ukmicky » Sat Oct 24, 2015 7:03 pm

Adverse possession wise if he personally hasn't got the required amount of years he can use the previous owners years of adverse possession to add to his . The shed I take it is also being used as a boundary feature so if he could show he had the required amount of years he would has a good case under adverse possession laws to gain the land.

For you to be able to force him to stand by his words in the email it would need to be deemed a legal contract. A legal contract requires him to receive consideration in exchange .Going by what you have posted it would not be classed as a contract .

You may have a right based on the email to claim some form of compensation for part of the cost of the surveyor due to your reliance on it .

Can you just move the shed. If you move it and you damage it (which you probably will )you could find yourself in court paying out damages and could also then be forced to give him back the land. Bearing in mind not all of the shed will be on the disputed land It can also become criminal trespass if you damage the shed or use threatening, abusive or insulting behaviour to the occupier when he tries to stop you.

Does he have to accept the surveyors report by law as fact ,no. Legal boundary wise ,two separate land heights doesn't really go in your favour even though it does not create a legal presumption of ownership on its own.

What can you do now apart from go to court , talk and hope you can persuade him based on the surveyors report to do the right thing, if what you want is the right thing. (There are always two sides)

You also need to be careful if he is selling his house because if your claim is shown to be unfounded and it costs him. He may have case for a cause of action against you .
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Boundary encroachment

Postby jonahinoz » Sat Oct 24, 2015 7:34 pm

Hi,

The OP lives in a maisonette, which suggest it and the garden are leasehold.

My understanding is that adverse possession cannot be claimed against leasehold property ... only it is more complicated than that. Something along the lines of the adverse possession may last until the lease expires. If that is correct, it might, or might not, deter potential buyers and their lenders, so concentrate the neighbours mind.

Of course, the freeholder may have given permission for the encroachment, and the permission may be withdrawn. Or the area of land may have been sold to the neighbour ... end of story ... only it should have been notified to Land Registry.

The OP is leasing a specified area of garden, some of which she is unable to enjoy. The Freeholder owns a piece of land which somebody else appears to be on the point of selling. The neighbour appears to be about to sell a piece of land to which he has no title ... will he tell the buyer?

I suggest that the Freeholder should be advised of the situation, with the OP complaining about not enjoying what she is paying for.

John W
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Re: Boundary encroachment

Postby ukmicky » Sat Oct 24, 2015 8:05 pm

jonahinoz wrote:Hi,

The OP lives in a maisonette, which suggest it and the garden are leasehold.

My understanding is that adverse possession cannot be claimed against leasehold property ... only it is more complicated than that. Something along the lines of the adverse possession may last until the lease expires. If that is correct, it might, or might not, deter potential buyers and their lenders, so concentrate the neighbours mind.

Of course, the freeholder may have given permission for the encroachment, and the permission may be withdrawn. Or the area of land may have been sold to the neighbour ... end of story ... only it should have been notified to Land Registry.

The OP is leasing a specified area of garden, some of which she is unable to enjoy. The Freeholder owns a piece of land which somebody else appears to be on the point of selling. The neighbour appears to be about to sell a piece of land to which he has no title ... will he tell the buyer?

I suggest that the Freeholder should be advised of the situation, with the OP complaining about not enjoying what she is paying for.

John W
Yes a claim for adverse possession over leasehold land is against the leaseholder and not the freeholder or the freeholders interest in the property and therefore only lasts as long as the lease. A lease can however last for 100s of years.
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Boundary encroachment

Postby jonahinoz » Sun Oct 25, 2015 9:24 am

Hi UKMicky,

Thank you for putting what I was trying to say into words that I could understand. :D

<<< A lease can however last for 100s of years. >>>

Agreed. But usually 99 years or 999 years, in cases like this. Edward VII reigned from 1901 to 1910. So assuming the description of "Edwardian" is pedantically correct, either the original lease has expired, or the best part of 900 years still to run. If the latter, then I assume the OP has a sub-lease. ??? If the former, my brain is starting to hurt, but I'm more than willing to learn.

My understanding is that when a lease nears the end of it's life, the Freeholder can (or could) demand that the Leaseholder brings the building into a good state of repair ... (Leaseholder "exits left", for distant climes) ...before returning the property to the Freeholder. I have read that in recent times, there have been changes, which allow the Leaseholder to remain in occupation, and the Freeholder can demand a fair rent. I suppose it's possible that nobody knows who the Freeholder is? Probably best if I get my coat.

John W
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