Adverse possession - Proprietary Estoppel?

Adverse possession - Proprietary Estoppel?

Postby idiotsguiderequired » Fri Jan 15, 2016 1:15 pm

Hi, I'm a newbie! Read through a lot of posts but none really similar to my predicament so hoping there will be some guidance...or idiots guide available to me here please!
I have lived in my semi detached property for 10 years next month. The previous owner of my house 'S' lived here for 40 years before they died. The joint gardens are of an unusual shape with a 3ft high boundary wall between the two. The neighbouring property has a triangle shape piece of land that crosses the end of my garden (imagine a block arrow and the whole triangle belongs on the original deeds to the neighbour and the rectangle part is split equally into both our gardens). When I bought the house there was a collapsed brick wall in line with my boundary wall sectioning the whole area off, a collapsed greenhouse and other gardening stuff. Neighbouring properties abut the land with 6ft fences so no other access can be gained. The next door house was in a dilapidated state. A month or so after buying I saw the sister of my neighbour on the path, explained I was renovating my house and asked about the triangle. She told me 'S' had used the land since her father died in 1992. The neighbour 'C' came out of her house and her sister told her what we had been talking about. I said I wanted to cut down the sycamores that had grown on the triangle and I was going to cut down the hollies on my side of the front garden wall. Her response was "napalm the lot, do what you want". I spoke with the sister in passing on the driveway over 10 years more than I ever spoke with 'C'. Over the years I have cut down all the trees, bordering hedges, replaced the wall with several fences, added outdoor place stuff etc. 'C' never maintained any part of the triangle (or in fact any part of the house or rest of the garden). 'C's house was repossessed and sold 2 years ago (I was and am still in exclusive possession). Between repossession and sale the mortgage company offer to transfer the land for £1 consideration but the new buyer opposed so the offer was withdrawn. We then had a notice of interest put on the property through land registry. The new owner applied for it to be removed so when we objected LR insisted in order to object we must apply for adverse possession. Our legal advisor at the time completed AP1 and it was objected to by the new owner (on the basis that we are acting fraudulently, saying we've only used the land in the past few years, never been boundary wall etc). We agreed to negotiate via LR but the new owner refused so our case has gone to tribunal. As we have spent over £8k on legal fees it has far outweighed the value of the land (no real market value but to the adjoining neighbours and does not increase the value of our property - just the saleability and size wise is approx 20sqm) and frankly we can no longer afford the costs. Google images as far as I have been able to go back don't show the wall - but don't show any of the fences I have installed either. I've got lots of photographs of us using the triangle. I have submitted a statement of truth from 'C' who said 's' used the triangle from 1992 and we continued from 2006 to date without permission or objection. I have one landscaper who has given a statement confirming our use and our garden maintenance guy who has cut the hedges etc on the triangle since has also given a statement. Having read through case law and LR guides I'm actually in line with thinking it is proprietary estoppel. 'C' was aware both 'S' and I were in possession of the garden (she has admitted it and could easily see from her house - 20m away), the sister gave assurance of our using it, C didn't complain (passive acquiescence?) and we have acted detrimentally in terms of the cost of maintenance and development (bark, fences etc) of the triangle. This wasn't noted on AP1 (which I'm sure is ADV1 form now). Can we still request the matter is dealt with under Schedule 6, paragraph 5? I'm basing my case on successive squatting - including 'S' years.
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Re: Adverse possession - Proprietary Estoppel?

Postby Collaborate » Fri Jan 15, 2016 2:51 pm

To establish a proprietary estoppel one must prove the existence of three specific elements, namely:

(i) a representation or assurance by the owner of land to the claimant that the claimant has acquired, or will acquire, rights in respect of that property;
(ii) detrimental reliance or change of position by the claimant in reliance thereon; and
(iii) unconscionable conduct by the owner denying the claimant's rights.

The above can be seen here: http://www.familylawweek.co.uk/site.aspx?i=ed32401 Worth a read.

The hurdles I see for you are these:

1. To establish AP you need to prove the occupation of the land was without permission. From what you say, permission may have been given.

2. To establish PE you need to prove all 3 heads. Have a look at the article linked to above. You may find it useful.
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Re: Adverse possession - Proprietary Estoppel?

Postby Eliza » Fri Jan 15, 2016 3:00 pm

The point you make re one of the owners "not complaining" being translated by you into being "passive acquiescence" is not necessarily the case.

They may well disagree with you using their land - but have decided not to say anything about it or been too tied-up with other things to say anything about it - because they didn't know how to best approach you about getting their land back. Not saying anything does NOT mean "passive acquiescence" - there is no such thing.

A previous owner of my current house put up with all sorts from neighbours - but it has emerged that it was very far from "passive acquiescence". What it actually was that she didn't know how to tackle them about it and one of them is VERY VERY VERY strong-willed/selfish indeed.

I have had one heck of a battle to stop the neighbours getting up to all sorts because of the previous owner not doing anything about them - which I won in the end :D . But it IS very clear she knew what they were like and that they were "taking liberties" but just didn't feel able to stand up for herself in response to them.
Apologies for not giving exact personal details in my posts - you never know who is reading....
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Re: Adverse possession - Proprietary Estoppel?

Postby idiotsguiderequired » Fri Jan 15, 2016 3:17 pm

Thank you for your response Eliza - my first one :). The previous neighbour has actually put that she had no objection to the adverse possession (error by LR who sent her the notice of interest and some AP stuff) and she actually agreed that we should be entitled to the land in succession to the previous owner of my house who used it. It is the new owner who is objecting. The previous owner actually said to me when I asked about cutting some trees back was "napalm the lot, do what you want". By passive acquisience I mean she could clearly see I erected a new fence without any access onto her land yet she did nothing about it - her sister told me that she liked the colour I painted it. I occupied the land in plain sight for almost 10 years - and only by her admission realise my predecessors did for 13 years also.
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Re: Adverse possession - Proprietary Estoppel?

Postby MacadamB53 » Fri Jan 15, 2016 3:41 pm

Hi idiotsguiderequired,

are you still in possession of the land?

Kind regards, Mac
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Re: Adverse possession - Proprietary Estoppel?

Postby idiotsguiderequired » Fri Jan 15, 2016 3:50 pm

Collaborate wrote:To establish a proprietary estoppel one must prove the existence of three specific elements, namely:

(i) a representation or assurance by the owner of land to the claimant that the claimant has acquired, or will acquire, rights in respect of that property;

I figured that the assurance to have the land came from 'C's sister of which 'C' was witness to and we relied on that information by embarking on work to the area
(ii) detrimental reliance or change of position by the claimant in reliance thereon; and

the detrimental reliance was the cost we have incurred in terms of maintenance

(iii) unconscionable conduct by the owner denying the claimant's rights.

the new owner was aware of our occupation (although not why as new owner has never spoken with us) so just because the house was sold it would be unconscionable to deny our right to AP?

The above can be seen here: link removed Worth a read.

Rather daunting read for a simpleton like me....

The hurdles I see for you are these:

1. To establish AP you need to prove the occupation of the land was without permission. From what you say, permission may have been given.

2. To establish PE you need to prove all 3 heads. Have a look at the article linked to above. You may find it useful.


Thank you for your response :)
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Re: Adverse possession - Proprietary Estoppel?

Postby idiotsguiderequired » Fri Jan 15, 2016 3:51 pm

MacadamB53 wrote:Hi idiotsguiderequired,

are you still in possession of the land?

Kind regards, Mac


Yup! trampoline, playhouse (anchored to the ground), climbing wall etc and 8 tonnes of bark with the fence intact.
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Re: Adverse possession - Proprietary Estoppel?

Postby MacadamB53 » Fri Jan 15, 2016 4:07 pm

Hi ign,

whether 'C' or indeed their sister made it clear that you could "do what you want" when you said you were going to tidy it up is not quite the same as them saying "if you tidy it up you can have it" which is an example of what would qualify for part 1 as described by Collaborate.

all action taken between that conversation and the repo was with the owner's permission.

there wasn't any 'passive acquiescence' at all - she said you could "do what you want" which means "I am allowing you use of my land".

had you done something like build on it she might have stepped in, but you had simply been enjoying a piece of her land as garden with her consent.

how did you respond to the offer following the repo?

Kind regards, Mac
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Re: Adverse possession - Proprietary Estoppel?

Postby arborlad » Fri Jan 15, 2016 5:08 pm

Eliza wrote:........the previous owner not doing anything about them - which I won in the end.....



If this is true, you need to update one of your own threads!
arborlad

smile...it confuses people
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Re: Adverse possession - Proprietary Estoppel?

Postby idiotsguiderequired » Fri Jan 15, 2016 5:10 pm

MacadamB53 wrote:Hi ign,

whether 'C' or indeed their sister made it clear that you could "do what you want" when you said you were going to tidy it up is not quite the same as them saying "if you tidy it up you can have it" which is an example of what would qualify for part 1 as described by Collaborate.
back nearly 10 years ago when the sister said 'S' had it for years I took from that I could have it too. I do need to note that if 'C' was still next door I would never have even considered to go along this route as I'm in no doubt that we would continue to have the land.

all action taken between that conversation and the repo was with the owner's permission.

there wasn't any 'passive acquiescence' at all - she said you could "do what you want" which means "I am allowing you use of my land".

had you done something like build on it she might have stepped in, but you had simply been enjoying a piece of her land as garden with her consent. e I'm confident that 'C' wouldn't have commented either way. There is a large playhouse/swingset/slide, shed, etc and we have previously had a paved area. There was a greenhouse from 'S' that 'C' informed me belonged to him

how did you respond to the offer following the repo?

We were issued with a chattels notice (?) 3 months after the repo which is when we engaged a solicitor. Mortgage Co said would transfer land for £1 but the new buyer objected (according to her) and the offer was withdrawn. Legal suggested we put in notice of interest on property with LR. That was August 15. Got notice for its removal from new owner in October 15 which is when we objected.

Kind regards, Mac
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Re: Adverse possession - Proprietary Estoppel?

Postby COGGY » Fri Jan 15, 2016 5:33 pm

Many years ago, when relations between us and our neighbour were friendly, he several times suggested that, as I liked gardening so much, I would be welcome to take over his garden. :) Even stating that I could please myself what I did in it. Never in a million years would I have taken this to mean that he was making a present to me of his land. I understood that he would like his garden to look good and had no wish to do the work himself. I did not take him up on his kind offer. :roll:
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Re: Adverse possession - Proprietary Estoppel?

Postby idiotsguiderequired » Fri Jan 15, 2016 8:53 pm

Thank you everyone who has responded.

Now I see from that perspective Coggy! Although over the years and retrospectively I think if I had asked 'C' to transfer the land to me it would have been done. In C statement it reads ... S spent time in the triangle with my father...S carried on using the triangle without my consent when my father moved out in 1992. I was not interested in the garden....when 'me' moved in they continued in the same manner.

I only remembered the napalm comment a few weeks ago so I hadn't told legal advice previously hence why I gather I was applying for AP. Would the right thinking here be that I'm not actually in a position to do so? It was a favour with no gain? I'm not in a position to afford any costs if they are awarded (which I'm unclear as to what circumstances costs are awarded at a tribunal) and being perfectly honest the land isn't worth it...certainly not the £8k I've spent (I figured that out later when I wondered if I bought it how much would I pay...no more than £1K! - lesson learned).

Supposing this is a no go case given the more I remember - I need to withdraw? Can costs still be awarded? I'm wondering if LR then give me an eviction notice or something? I called LR to ask where these details could be found and was told they don't give legal advice. I explained that I wasn't after legal advice I was looking for an idiots guide to where to find out the information as it wasn't readily available on their site. I was told they couldn't help in that manner :( if I wanted to know anything I needed to email them and copy in the respondents solicitor before they would respond.
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Re: Adverse possession - Proprietary Estoppel?

Postby pilman » Sun Jan 17, 2016 1:31 pm

We agreed to negotiate via LR but the new owner refused so our case has gone to tribunal.
If this matter is now being dealt with by the tribunal then costs will be awarded to the winning party after the tribunal hearing is over when the judge has reached a decision.

If you now decide to withdraw the application then it is likely that costs will be awarded to the objector for his legal fees to date.

That will be a lot less than losing the hearing when additional costs will have been incurred, although even now there is no knowing what legal costs have been already been incurred.
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