Scotland - Boundary dispute - with a Difference

Re: Scotland - Boundary dispute - with a Difference

Postby justjohn » Thu Oct 15, 2015 9:50 pm

MacadamB53 wrote:Hi justjohn,

For the extension yes. on the planning application there is a box you tick to say you own the land. in Scotland you do not have to own the land to apply or get planning permission or prove you own the land. No checks are ever done.

if the plan showed the encroachment that would be the ideal time for your predecessor to exercise the right to dispute the encroachment which you think passed to you.

and because that right was not exercised when the predecessor was given such evidence, under English Law your neighbour may have been able to successfully argue 'estoppel by acquiescence' as a defence.

Kind regards, Mac
edit: surely the downpipe can be modified so it terminates on their land into a water butt as a temporary measure? then you can dig up the pipes at your leisure


ok ill go with that....however there is a problem with that assumption lol the drains are not on the plans. the extension is, but not the drains lol further more the plans do not show the increase in the extension in proportion to the old extension (the original extension was knocked down to create the new one larger). And I asked the solicitor this. he said they were probably never aware of it as it was at the rear of the building. its the drains I have the issue with and the vendor would never have been notified of there placement.

yes it could be diverted to water butt. I could re-route it myself. however I think I have given enough ground on this situation lol(no pun intended). and I do not know what the exact pipe lay out is or exactly what pipes are under ground.
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Re: Scotland - Boundary dispute - with a Difference

Postby justjohn » Thu Oct 15, 2015 9:59 pm

in Scotland you do not get plans submitted to neighbours. you get notification of a planning application number. Then you go and look it up in either a planning office or online. only then do you get to see plans.

so the original vendors would have got a council letter saying X property have applied for extension. If you would like to object to application please go to BLA by BLA

They would not see plans unless they went to council website.

And there is no reference at all to drainage or pipework.
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Re: Scotland - Boundary dispute - with a Difference

Postby MacadamB53 » Thu Oct 15, 2015 10:13 pm

justjohn wrote:in Scotland you do not get plans submitted to neighbours. you get notification of a planning application number. Then you go and look it up in either a planning office or online. only then do you get to see plans.

so the original vendors would have got a council letter saying X property have applied for extension. If you would like to object to application please go to BLA by BLA

They would not see plans unless they went to council website.

And there is no reference at all to drainage or pipework.

yeah, I know - it's the same in England.
the point made in my previous message stands.

Kind regards, Mac
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Re: Scotland - Boundary dispute - with a Difference

Postby justjohn » Thu Oct 15, 2015 10:34 pm

MacadamB53 wrote:
justjohn wrote:in Scotland you do not get plans submitted to neighbours. you get notification of a planning application number. Then you go and look it up in either a planning office or online. only then do you get to see plans.

so the original vendors would have got a council letter saying X property have applied for extension. If you would like to object to application please go to BLA by BLA

They would not see plans unless they went to council website.

And there is no reference at all to drainage or pipework.

yeah, I know - it's the same in England.
the point made in my previous message stands.

Kind regards, Mac


I had already asked my solicitor if the vendors complacency regarding the encroachment had any effect on the legal title I had . "he said that since the property belonged to a national company and was a branch they would never have been informed at the correct level. The branch itself would never have known there was anything untoward"

I can only assume acquiescence, estoppel would have applied if head office was informed.(I did not know that was the legal term when I aske about "complacency")
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Re: Scotland - Boundary dispute - with a Difference

Postby justjohn » Thu Oct 15, 2015 11:00 pm

Taken from wiki, I assume this is what you mean...looks more like deliberately allowing/encouraging encroachment

In Willmott v Barber (1880) 15 Ch D 96, Fry J considered that five elements had to be established before proprietary estoppel could operate:
• the claimant must have made a mistake as to his legal rights;
• the claimant must have done some act of reliance;
• the defendant, the possessor of a legal right, must know of the existence of his own right which is inconsistent with the right claimed by the claimant;
• the defendant must know of the claimant's mistaken belief; and
• the defendant must have encouraged the claimant in his act of reliance.
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Re: Scotland - Boundary dispute - with a Difference

Postby MacadamB53 » Thu Oct 15, 2015 11:22 pm

Hi justjohn,

IMHO you ought to run this by an alternative sols - one who specialises in land law.

as an employee of a very large uk company with a working knowledge of how the company's property portfolio is managed I must tell you that to suggest "head office" wouldn't have known is utter poppycock.

I can also tell you that to suggest only "head office" count when it comes to identifying who represents the legal owner is also utter poppycock.

wiki:
the claimant (the neighbour) must have made a mistake as to his legal rights
he signed a planning app confirming he owned the land
the claimant must have done some act of reliance
he built an extension after your predecessor did not object

the defendant, the possessor of a legal right, must know of the existence of his own right which is inconsistent with the right claimed by the claimant
your predecessor knew it was his land

the defendant must know of the claimant's mistaken belief
your predecessor was aware of the planning application

the defendant must have encouraged the claimant in his act of reliance
your predecessor acquiesced whilst the actual building took place and then sold the property on without disputing the encroachment

Kind regards, Mac
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Re: Scotland - Boundary dispute - with a Difference

Postby Collaborate » Thu Oct 15, 2015 11:24 pm

justjohn wrote:Taken from wiki, I assume this is what you mean...looks more like deliberately allowing/encouraging encroachment

In Willmott v Barber (1880) 15 Ch D 96, Fry J considered that five elements had to be established before proprietary estoppel could operate:
• the claimant must have made a mistake as to his legal rights;
• the claimant must have done some act of reliance;
• the defendant, the possessor of a legal right, must know of the existence of his own right which is inconsistent with the right claimed by the claimant;
• the defendant must know of the claimant's mistaken belief; and
• the defendant must have encouraged the claimant in his act of reliance.


Can't argue with that assessment - but in Scotland it's not called Estoppel, and the rules are different.

So while Mac's comment of
and because that right was not exercised when the predecessor was given such evidence, under English Law your neighbour may have been able to successfully argue 'estoppel by acquiescence' as a defence.
is wrong in English law (merely failing to act promptly being of no relevance to estoppel), who is to say what applies in Scottish Law?

I don't know what it is about this site whereby people attach such significance to acting promptly to enforce one's rights, otherwise they are lost. We have the Limitation Act that tells us how long we have to enforce our rights. We need look no further than that. Whilst over time memories may fade and evidence lost, that is our only concern provided we keep within the time limits given by the Limitation Act.
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Re: Scotland - Boundary dispute - with a Difference

Postby justjohn » Thu Oct 15, 2015 11:25 pm

I assume for this to apply the owner of the property must be informed of the intention to build on there land

Council planning do not contact owners they contact householders / proprietors.

if the property is rented or is a branch property the owner is never contacted by the council or the person making the planning application.

the cases I have look at for 'estoppel by acquiescence' all state the owner would have to be informed.

I assume this is why my solicitor has said the vendors complacency does not matter. Even so they would not have been informed regarding drainage which is really my main issue.(good job it was not piping for a ground source heat pump lol )
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Re: Scotland - Boundary dispute - with a Difference

Postby Collaborate » Thu Oct 15, 2015 11:29 pm

MacadamB53 wrote:the defendant, the possessor of a legal right, must know of the existence of his own right which is inconsistent with the right claimed by the claimant
your predecessor knew it was his land

the defendant must know of the claimant's mistaken belief
your predecessor was aware of the planning application

the defendant must have encouraged the claimant in his act of reliance
your predecessor acquiesced whilst the actual building took place and then sold the property on without disputing the encroachment

Kind regards, Mac


Why should the predecessor have known the building was on their land, when the charity didn't have a clue? It is for the charity, who seeks to invoke the doctrine of estoppel (or would were this land to be south of the border), to prove all heads of the doctrine.
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Re: Scotland - Boundary dispute - with a Difference

Postby justjohn » Thu Oct 15, 2015 11:44 pm

Collaborate wrote:Why should the predecessor have known the building was on their land, when the charity didn't have a clue? It is for the charity, who seeks to invoke the doctrine of estoppel (or would were this land to be south of the border), to prove all heads of the doctrine.


I am unsure what the Scottish equivalent is. But the solicitor Is adamant the vendors complacency does not matter.
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Re: Scotland - Boundary dispute - with a Difference

Postby MacadamB53 » Thu Oct 15, 2015 11:53 pm

Hi justjohn,
Collaborate wrote:Why should the predecessor have known the building was on their land
are the boundaries of your property clearly indicated in your deeds - as is more commonplace in Scotland? or was there something on the ground that made it clear there'd been an eight foot encroachment?

Kind regards, Mac
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Re: Scotland - Boundary dispute - with a Difference

Postby justjohn » Fri Oct 16, 2015 12:02 am

Additionally....lol I have manage to get them to remove movable items from the land.

Surely this is further admittance by there actions that they do not own the land or are not under the impression they have rites to the land. I asked them via solicitor to move items A,B,C they removed them.

Surely even in England rights to use Estoppel have been made null and void.
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Re: Scotland - Boundary dispute - with a Difference

Postby justjohn » Fri Oct 16, 2015 12:13 am

MacadamB53 wrote:Hi justjohn,
Collaborate wrote:Why should the predecessor have known the building was on their land
are the boundaries of your property clearly indicated in your deeds - as is more commonplace in Scotland? or was there something on the ground that made it clear there'd been an eight foot encroachment?

Kind regards, Mac



lol a 2 year could work it out from my plans. the deeds were the clearest I have ever seen ...and to make things even worse for the trustees my deed is 2 deeds imalgimated into one. 2 strips and they have encroached on both plans/strips.

yes the old buildings extension and there is also measurements. my deed is made up of 2 parallel strips. the deeds are clean the extension is at end of plot crossing the 2 deeds.

no one is disputing deeds or encroachment. they should have only built upto there old extension. anything over the old extension boundary is encroachment. we have google street view and the deeds to compare it too. The deeds are that good its probably why the fessed up.
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Re: Scotland - Boundary dispute - with a Difference

Postby justjohn » Fri Oct 16, 2015 12:25 am

Surely even under English law

you cannot say you accidently built on someone else's land - sorry.
Yes we will pay all your legal costs and conveyancing to sort your deeds and ours.
We will also move the drains.
And remove movable objects from the property on request
All via solicitor

Then pull some cock and bull defence out the bag at a later date?

(all I want is some drains moved lol )
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Re: Scotland - Boundary dispute - with a Difference

Postby MacadamB53 » Fri Oct 16, 2015 12:28 am

Hi justjohn,

lol a 2 year could work it out from my plans
that's a big tick for element 3 of the doctrine of proprietary estoppel.
Collaborate wrote:We have the Limitation Act that tells us how long we have to enforce our rights. We need look no further than that.
the Limitations Act would be used by the defence, not the claimant - the defence being the claim is stale due to the period of time that has elapsed being greater than the relevant period set out in the Act.
a defence of 'proprietary estoppel' need only meet the five elements of the doctrine you lifted from wiki - it is a based on the notion that, given those five elements are met, it would be inequitable to allow the claim to stand.

Kind regards, Mac
edit: nobody need pull any defence if this does not go to court, but if it does go to court...
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