350m boundary in place for 33years being challenged

350m boundary in place for 33years being challenged

Postby rovpaul » Wed Jan 27, 2016 9:25 pm

I’m afraid I couldn’t locate a thread with the same challenges so I’d welcome any advice on the following please (sorry for the length but I want to share the detail in the hope it helps):

BACKGROUND
· We have a 300 metre long driveway, 100 metres along a hedge before it turns 90 degrees where for the remainder it is bordered by a stream on one side and a neighbours field on the other side
· This driveway used to be part of the neighbours land until it was purchased by the former owner of our property in 1983 to act as the access driveway to a farmhouse built at the end of that drive. The title deeds indicated that the previous owners of our property had to “erect” a fence (it says nothing about ownership or subsequent maintenance of the fence but we are assuming that, as we have responsibility to erect it then we should have rights of ownership if we are to maintain it).
· The boundary of the driveway when it was sold was defined as 15 feet from the “middle of the hedge” and, after it turns the corner, 30 feet from the “eastern edge of the stream”.
· Our neighbours (who moved there 3 years ago at the same time as us) have in the last year or so removed part of the fence which acts as the boundary between the drive and their land which has been along this line since 1983 and installed a 20 foot double metal gate without permission even though they acknowledge that they have no right of way on our drive to use this gate to access their land. Their justification is that it can be used to help aid the recovery of escaping cows (which has happened once in last 20 years to my knowledge). Our belief is that they had intended to use this as a right of way onto their land for tractors, etc.
· We tried to live with the gate in a bid to avoid any conflict for some months but decided to eventually politely ask if it could be removed. The neighbours indicated that they would need to speak to their solicitors which we were rather surprised by had always enjoyed very good relationships with them and hadn’t anticipated it being a legal issue. In a bid to diffuse the issue, we gave them a copy of the transfer document hoping it would remove any ambiguity and prove that the fence was ours. They retorted by accusing us of attempting to “land grab” and trying to deceive them into admitting that their land was ours. We have hugely surprised by their reaction given that we were simply asking for a gate to be removed in what we still believe is our fence.
· However, the neighbours have been on our land themselves and measured the driveway and also got someone in to measure the entire 300 metre length (although we probably wouldn’t have refused out of courtesy, both instances were without our permission) and mark along our driveway where they believe the boundary is. In some areas, this shows the boundary as being 4 or 5 feet onto our driveway which would totally prohibit access to our property. This has been marked at intervals of about 20 metres but the points which it has been marked seem rather selective as there are points which haven’t been marked where it would show that their land actually encroaches on ours. In fairness, there are several points marked where it does show this but the majority suggests that our driveway and adjacent grass verge is largely on what they believe is their land. Our solicitor has insisted that we remove stakes but I’m loath to do so as don’t want to unnecessarily escalate tensions with the neighbours.
· I am now awaiting an indication of what they intend to do with this information. Sadly, despite our sincere attempts to resolve this as delicately as we can, they have accused us of “land grabbing” even though we have not tampered with the boundary (which has existed since 1984) in any way since buying the house.
· We have a letter from the original owner of the property as at 1983 who we bought it from in 2013 who says that he installed the fence by agreement with the original owner of the neighbouring property and that there had been no disputes between him and subsequent owners on this point and that he has always maintained and owned the fence. He also states that he was asked by the previous owners of the neighbouring property to allow a gate in the fence and allow a right of way along his drive but he refused and that the matter went no further.

MY QUESTIONS ARE:
· Having consulted a solicitor, he has said that it may not be an Adverse Possession claim as the boundary was put in by permission so it could be said that it has not been possessed “adversely”. Does the fact that the owner had permission to put the fence there affect our claim that, as the land has been used and fenced for 33 years, we consider it to be our land and our fence? Our solicitor feels that the fact that the original owners agreed this as the boundary trumps the title deeds
· The transfer document takes measurements from the “middle of the hedge” and the “eastern edge of the stream”. This seems very subjective as to what constitutes the middle of a hedge and the edge of a stream; the bank slopes gently towards the bed so where would you take it from?
· Also the stream meanders quite dramatically but the fence itself has been installed in a dead straight line (presumably because it would be very impractical for a fence to follow the exact line of a meandering stream by 30 feet along it’s entire 200 metre length).
· Similarly, the definition of the “middle of the hedge” seems very vague. They are showing that we have encroached on their land by about a foot or two all the way along the 100 metre stretch which is 15 feet from the middle of the hedge and have staked the ground accordingly. They seem to be measuring to the base of the stump of the hedge that is currently there but these are field hedges which we ourselves cut back aggressively on moving in so, if they were planted in a staggered row originally but since removed as we believe, it could be argued that the fence line is in the correct place based on the hedge which was there 33 years ago. How do we prove where it was measured from 33 years ago?
· However, if this was indeed surveyed by a RCIS member this week, it shows that most of our driveway encroaches on their land, but if it has been there for 33 years and the fence was put up by permission and not disputed until now, is the land now ours and can we insist that they remove the gate from the fence (their argument being that they won’t move the gate as the fence is not ours as is on “their land”)?

Sorry for the length of this note but I hope the detail helps. I’d really welcome any advice.
rovpaul
 
Posts: 29
Joined: Wed Jan 27, 2016 10:51 am

Ads are not endorsed by www.gardenlaw.co.uk or the staff thereof and visitors should perform their own due diligence on the product or service offered.
 

Re: 350m boundary in place for 33years being challenged

Postby MacadamB53 » Wed Jan 27, 2016 10:21 pm

Hi rovpaul,

hedges and streams do move over time as you correctly state.

does the original document refer to these as being the boundary or where to locate the fence?

Kind regards, Mac
MacadamB53
 
Posts: 6038
Joined: Mon Dec 10, 2012 12:13 am

Re: 350m boundary in place for 33years being challenged

Postby mr sheen » Wed Jan 27, 2016 10:29 pm

At the moment you have nothing to prove and no claim against the neighbour, they have all to prove.
Whilst they shouldn't have put a gate in, you only really have a complaint if they use it for access.
You are now in dispute so it would be reasonable to allow professionals like surveyors access which you did. However you don't have to accept markers being put on land that you are in possession of.....you have had professional advice to remove them...so that would be a good place to start. Then the ball is firmly in the neighbours hands...and you can sit back, do nothing and carry on using the access as it has been enjoyed for many years. ( the neighbours may not tell you what they intend to do so forget it until there is any further progress....after taking the advice of your solicitor of course!)
mr sheen
 
Posts: 2093
Joined: Fri Feb 27, 2009 3:33 pm

Re: 350m boundary in place for 33years being challenged

Postby Collaborate » Wed Jan 27, 2016 11:32 pm

As the hedge and stream are movable things from which to measure, I suspect they were in the deed to identify where the road should be initially laid. Once the road is actually laid, you'd expect that the road itself is what defines the boundary of what you own.

Is there a plan attached to the 1983 transfer? Was it a metalled road or a dirt track?
Collaborate
 
Posts: 1125
Joined: Mon Feb 23, 2015 10:17 am

Re: 350m boundary in place for 33years being challenged

Postby arborlad » Thu Jan 28, 2016 12:05 am

rovpaul wrote:(sorry for the length but I want to share the detail in the hope it helps):



I think a drawing or plan would help with this, you'll need a couple more posts before you are allowed.

What type of fence is it.
arborlad

smile...it confuses people
arborlad
 
Posts: 7387
Joined: Sun Jul 09, 2006 6:30 pm
Location: Hertfordshire

Re: 350m boundary in place for 33years being challenged

Postby jonahinoz » Thu Jan 28, 2016 8:44 am

The title deeds indicated that the previous owners of our property had to “erect” a fence

Hi,

As erecting the fence was a contractural requirement, can it be argued that it was there by consent? Surely the land under the fence was part of the purchase?

Has this gate been installed so that any vehicles can turn into the field ASAP? Or is it in the middle of the 350m fence? Tractors? I immediately thought of builder's plant.

If you remove the surveyor's posts, remember to hand them back. Did they return your section of fence?

John W
jonahinoz
 
Posts: 1346
Joined: Fri Aug 05, 2011 5:15 pm

Re: 350m boundary in place for 33years being challenged

Postby rovpaul » Thu Jan 28, 2016 10:29 am

MacadamB53 wrote:Hi rovpaul,

hedges and streams do move over time as you correctly state.

does the original document refer to these as being the boundary or where to locate the fence?

Kind regards, Mac

Many thanks for your reply Mac, the original documents refer to the hedge and stream as being the points from which the fence should be measured i.e. 15 feet from the middle of the hedge and 30 feet from the eastern edge of the stream. The stream meanders so it would have been impractical for the fence to follow it from 30 feet from it's edge all the way along the original owners agreed with each other a straight line parallel to the stream which in parts is more or less than 30 feet from the "eastern edge" of the stream. The neighbours are pointing to the fact that it is more than 30 feet in places as being encroachment on their land.
rovpaul
 
Posts: 29
Joined: Wed Jan 27, 2016 10:51 am

Re: 350m boundary in place for 33years being challenged

Postby rovpaul » Thu Jan 28, 2016 10:33 am

jonahinoz wrote:The title deeds indicated that the previous owners of our property had to “erect” a fence

Hi,

As erecting the fence was a contractural requirement, can it be argued that it was there by consent? Surely the land under the fence was part of the purchase?

Has this gate been installed so that any vehicles can turn into the field ASAP? Or is it in the middle of the 350m fence? Tractors? I immediately thought of builder's plant.

If you remove the surveyor's posts, remember to hand them back. Did they return your section of fence?

John W

Many thanks for your reply John. The driveway goes in a straight line for 100 metres then turns left at 90 degrees for 200 metres. It is dead ahead of this turn that the neighbours installed a gate into their adjacent field so that, if there was a right of way, they'd have easy access for tractors, etc into their field. They admit they don't have a right of way into the field and put the gate their without asking in the hope that we would agree to allow them to use our drive. I'm reluctant because our water pipe goes under it, it has a bridge crossing a stream, etc so don't want their access of heavy farm machine to damage these.
Good advice on the surveyor's posts. Thanks and, no, they didn't return the fence but it is just stock proof wire fence and posts of about 20 feet.
rovpaul
 
Posts: 29
Joined: Wed Jan 27, 2016 10:51 am

Re: 350m boundary in place for 33years being challenged

Postby rovpaul » Thu Jan 28, 2016 10:41 am

mr sheen wrote:Whilst they shouldn't have put a gate in, you only really have a complaint if they use it for access.

Thanks Mr Sheen. I guess part of my issue is that the gates that they have put in are very large ugly, crooked metal double gates in what is an otherwise pleasant driveway and I'd like the fence returned to how it was. As a compromise, I might be willing to pay for the gates to be removed and the fence reinstated here (even though it hurts to have to pay to repair their damage to my fence) but their argument now appears to be that they claim that the fence is on "their land" so is "their fence". They have hinted that the compromise is that we ignore that the driveway is on their land in return from them allowing a right of way and access through these gates. My counter is that this is where the fence has been for 33 years and was agreed between the original owners and our predecessor has stated in writing that he has always "owned and maintained" this fence and the title deed said that we had to "erect" the fence which I believe means that we have an inherent obligation to maintain it, and we can't do so unless we own it.
Any further thoughts would be very welcome indeed.
rovpaul
 
Posts: 29
Joined: Wed Jan 27, 2016 10:51 am

Re: 350m boundary in place for 33years being challenged

Postby rovpaul » Thu Jan 28, 2016 10:42 am

arborlad wrote:
rovpaul wrote:(sorry for the length but I want to share the detail in the hope it helps):


What type of fence is it.

Hi Arborlad, it's a stockproof wooden post and wire fence with wooden straining posts at intervals along the length.
Thanks
rovpaul
 
Posts: 29
Joined: Wed Jan 27, 2016 10:51 am

Re: 350m boundary in place for 33years being challenged

Postby arborlad » Thu Jan 28, 2016 11:00 am

rovpaul wrote: The title deeds indicated that the previous owners of our property had to “erect” a fence .



The law presumes you will fence to the fullest extent of your land, this was done 33years ago with no apparent complaint from the then neighbour. If your current neighbour feels they don't have sufficient land, then 3years ago was the time to sort it with their vendor - not now. Does their land have development potential?

The bank of a meandering stream, by definition, can be an unreliable datum point. The centre of an established hedge is a much more reliable datum point, there is a possibility that the hedge might move, it would depend on a lot of different factors - but has it?
arborlad

smile...it confuses people
arborlad
 
Posts: 7387
Joined: Sun Jul 09, 2006 6:30 pm
Location: Hertfordshire

Re: 350m boundary in place for 33years being challenged

Postby rovpaul » Thu Jan 28, 2016 11:15 am

arborlad wrote:
rovpaul wrote: The title deeds indicated that the previous owners of our property had to “erect” a fence .



The law presumes you will fence to the fullest extent of your land, this was done 33years ago with no apparent complaint from the then neighbour. If your current neighbour feels they don't have sufficient land, then 3years ago was the time to sort it with their vendor - not now. Does their land have development potential?

The bank of a meandering stream, by definition, can be an unreliable datum point. The centre of an established hedge is a much more reliable datum point, there is a possibility that the hedge might move, it would depend on a lot of different factors - but has it?


The neighbours are property developers (wife is non-exec of a building company) and they have built 3 new houses in the area and are currently refurbishing a motel and cafe so, yes, we are wary of the possibility that a right of way could give rise to later development. In truth, I don't think they'll have any luck if this was their intention as our land is a Site of Special Scientific Interest and Natural England would object to any development in such close proximity. I'd like to avoid the possibility though, however remote, by not allowing a right of way.

As regards the hedge, we cut it back pretty dramatically on moving in as it encroached upon the drive. They have measured from the stem of what remains but I'd say that this is an unreasonable guide as the hedge was somewhat staggered and we removed the furthest forward stems at the base.
rovpaul
 
Posts: 29
Joined: Wed Jan 27, 2016 10:51 am

Re: 350m boundary in place for 33years being challenged

Postby arborlad » Thu Jan 28, 2016 11:29 am

rovpaul wrote:The neighbours are property developers (wife is non-exec of a building company) and they have built 3 new houses in the area and are currently refurbishing a motel and cafe so, yes, we are wary of the possibility that a right of way could give rise to later development.



.................so this is just flimflam: "Their justification is that it can be used to help aid the recovery of escaping cows........." Remove gates - replace fence......today wouldn't be too soon!

In the fullness of time you might want to consider something more substantial than a stock fence, but not at the moment, not until all the current issues are resolved.

Unless I've missed something, talk of meandering streams and moving hedges is a bit misplaced. 33years ago they were used to define where the fence should be placed, this was done and what the hedge and stream have done in the intervening years is not relevant.
arborlad

smile...it confuses people
arborlad
 
Posts: 7387
Joined: Sun Jul 09, 2006 6:30 pm
Location: Hertfordshire

Re: 350m boundary in place for 33years being challenged

Postby Roblewis » Thu Jan 28, 2016 1:18 pm

arborlad wrote:
rovpaul wrote:The neighbours are property developers (wife is non-exec of a building company) and they have built 3 new houses in the area and are currently refurbishing a motel and cafe so, yes, we are wary of the possibility that a right of way could give rise to later development.



.................so this is just flimflam: "Their justification is that it can be used to help aid the recovery of escaping cows........." Remove gates - replace fence......today wouldn't be too soon!

In the fullness of time you might want to consider something more substantial than a stock fence, but not at the moment, not until all the current issues are resolved.

Unless I've missed something, talk of meandering streams and moving hedges is a bit misplaced. 33years ago they were used to define where the fence should be placed, this was done and what the hedge and stream have done in the intervening years is not relevant.


+1 Arborlad is right the hedge and stream were reference points many years ago to set the fence boundary and are now irrelevant. The fact that they are using this to establish a potential right of access appears to show that they are actually after a RoW for future development. You have evidence of what happened in setting the fence 33 years ago so remove stakes asap and tell him clearly that there is no right for him to enter your driveway except for lawful visits to your house.
Roblewis
 
Posts: 1764
Joined: Mon Jan 24, 2011 12:41 pm

Re: 350m boundary in place for 33years being challenged

Postby stufe35 » Thu Jan 28, 2016 1:25 pm

I echo what others have said. Im no expert but my take on this is:
They are developers trying it on. The fence is yours, they have committed criminal damage and theft by removing it.
The fence was agreed at the time of the conveyance (1984), and was unchallenged when you and they bought your properties 3 years ago. It now represents the boundary line and the fence belongs to you as it was erected by the former owners of your property.

IMHO your solicitor or you should write to them telling them to remove their gate and reinstate the fence at their cost in a reasonable (defined) timeframe, say 1 month, otherwise you will do so and seek costs. Remind them they have no right of access along your drive and that they or agents acting on their behalf should not come on to your property for any purpose other than an emergency without your prior permission otherwise you will regard it as trespass.- in the same letter point out the situation with the fence as I said above.

Im amazed your solicitor hasn't simply done this are you sure he/she is the right person for the job ?...you should perhaps consult a specialist in landlaw.

The time for worrying about neighbourly relations is gone- what sort of people enter your property without permission and erect gates 'thinking' it will be ok to use your drive. ....i'll tell you---greedy nasty ones who care about no one other than themselves and are trying to bully you. Don't let them.

My advice...do not accept a right of way on your property. Just look at other threads on this site at the problems people have.

In the immediate term I would padlock their gates and erect a tempoary fence/barrier in front of them to prevent their use.
stufe35
 
Posts: 784
Joined: Mon Nov 05, 2012 4:06 pm

Ads are not endorsed by www.gardenlaw.co.uk or the staff thereof and visitors should perform their own due diligence on the product or service offered.
 
Next

Return to Boundaries

Who is online

Users browsing this forum: Google Adsense [Bot] and 5 guests