350m boundary in place for 33years being challenged

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

Postby Scrambler » Sun Jan 31, 2016 6:10 pm

Any update ? How did the meeting go ?
Scrambler
 
Posts: 58
Joined: Tue Dec 18, 2012 3:14 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.
 

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

Postby rovpaul » Mon Feb 01, 2016 11:49 am

Scrambler wrote:Any update ? How did the meeting go ?


By way of an update, we met with the neighbours who were adamant that the stakes that their surveyors marked out were conclusive proof that our driveway was on their land by up to 6 feet along it's 350 metre length. We made clear the extent to which their accusations had forced us to consult with solicitors, RICS and the original owner and were satisfied that the drive up to the existing boundary was ours and it would be up to them to prove otherwise. The crude measurements taken constitute an unreliable datum point and we have aerial and ground level photograph evidence of the hedges from which the boundary has been measured having been cut back dramatically over the years. The original owner has also provided written testimony that the fence was erected with the permission of the original neighbour in 1984 and has followed this line since. We have also advised them that we would likely have a case under Adverse Possession in any event if they felt that the fence was not in place by consent. I received an email over the weekend advising that they would remove the gate and that they had removed the stakes and that they would allow us to continue to use "their land" in the interests of keeping the peace. Their claim is that the existence of the fence is no indication of where the true boundary lies i.e. they believe that the fence is on their land by consent but the boundary is where they have marked in line with what was in the Transfer Agreement. I called him and said that "agreeing to disagree" is not an adequate resolution. They have made a claim upon our land and I fear it will store up trouble for the future unless we can firmly establish ownership (given that water pipes, telephone cables, etc also run under this land). We have what I believe is overwhelming evidence and the boundary has existed for 33 years unopposed so the burden is upon them to prove otherwise now that the accusation has been made. If they choose not to, I would conclude that they accepted the position. If they do choose to challenge it, we have been assured by our insurance company that they will cover it. I'll be sure to post updates as to how this evolves.
rovpaul
 
Posts: 29
Joined: Wed Jan 27, 2016 10:51 am

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

Postby span » Mon Feb 01, 2016 12:08 pm

Make that reply to them in writing, not just a phone call. Have a paper trail of correspondence for further down the line, jic.
span
 
Posts: 1466
Joined: Sat Nov 06, 2010 2:34 am

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

Postby arborlad » Mon Feb 01, 2016 1:37 pm

rovpaul wrote: We have also advised them that we would likely have a case under Adverse Possession in any event if they felt that the fence was not in place by consent.



It's a shame you used the term 'Adverse Possession', it implies, however inadvertently, that your possession is in some way imperfect.



I received an email over the weekend advising that they would remove the gate



I thought it was two gates, however, the gates/s and posts need to be removed, cutting them at ground level is not sufficient. In different circumstances the normal timescale for your neighbour to comply would be a month or more. Do you have a contractor who is appraised of the situation and can act swiftly if necessary?



.....they had removed the stakes and that they would allow us to continue to use "their land" in the interests of keeping the peace.



That's wholly unacceptable, without being antagonistic, you need to be far more assertive of your land ownership.
arborlad

smile...it confuses people
arborlad
 
Posts: 7384
Joined: Sun Jul 09, 2006 6:30 pm
Location: Hertfordshire

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

Postby rovpaul » Tue Feb 02, 2016 10:08 am

It's a shame you used the term 'Adverse Possession', it implies, however inadvertently, that your possession is in some way imperfect.


We have written to them outlining the evidence we have gathered from former owners, RICS, solicitors and photographs outlining our firm understanding that the points from which their measurements have been taken constitute unreliable datum points but we have evidence of their original location, testimony from the original owner that the fence was put where it was by consent and has been unopposed for 33 years. The context in which we have mentioned adverse possession is that, even if they somehow can demonstrate that the fence was not put in by consent (and the burden would be upon them to prove this given the testimony from the original owner), we could then argue adverse possession i.e. either way, the land is ours

I thought it was two gates, however, the gates/s and posts need to be removed, cutting them at ground level is not sufficient. In different circumstances the normal timescale for your neighbour to comply would be a month or more. Do you have a contractor who is appraised of the situation and can act swiftly if necessary?


Agreed. it is a double metal gate. We originally told them that we did not want the gate removed and fenced nailed to the gate posts to which their retort was "it's our fence, we'll do what we like". I have insisted that the gate posts are also removed and the fencing reinstated up to the original straining posts.

That's wholly unacceptable, without being antagonistic, you need to be far more assertive of your land ownership.


Absolutely. We have made clear that "agreeing to disagree" is not adequate given the claims that they have made upon the land and that, if we cannot explicitly agree between us, then it must decided by legal process for avoidance of doubt.
rovpaul
 
Posts: 29
Joined: Wed Jan 27, 2016 10:51 am

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

Postby MacadamB53 » Tue Feb 02, 2016 10:33 am

Hi rovpaul,

whether their measurements have or haven't been taken from reliable datum points is interesting but meaningless.

the ONLY point to discuss is whether this would get them anywhere - it won't because the time to check was 1984.

as an aside, would it be possible to see the actual wording which referred to the placement of the fence? (it is entirely possible this might explain the alleged discrepancies and everyone can quickly move on).

Kind regards, Mac
MacadamB53
 
Posts: 6028
Joined: Mon Dec 10, 2012 12:13 am

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

Postby Roblewis » Tue Feb 02, 2016 11:44 am

Mac

The OP says earlier that the original vendor and purchaser recognised that following the stream measurement too precisely would have caused a meandering fence line - neither party wanted this and so agreed on the ground a final straight fence line. This I think means that in places the original boundary definition would lead to land being won in places and lost in others by both parties.

Of course if the developers wish to sell their sale would be blighted by the dispute that now exists, just as it is for the OP. I think they thought their bullying would work!!!!
Roblewis
 
Posts: 1764
Joined: Mon Jan 24, 2011 12:41 pm

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

Postby MacadamB53 » Tue Feb 02, 2016 12:12 pm

Hi Rob,

I understand.

however, the neighbour might be misinterpreting the wording anyway and the fence does in fact match what was asked for in the deed (not just in conversation)...

Kind regards, Mac
MacadamB53
 
Posts: 6028
Joined: Mon Dec 10, 2012 12:13 am

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

Postby rovpaul » Tue Feb 02, 2016 12:25 pm

MacadamB53 wrote:Hi Rob,

I understand.

however, the neighbour might be misinterpreting the wording anyway and the fence does in fact match what was asked for in the deed (not just in conversation)...

Kind regards, Mac


The wording in the transfer agreement related to the stretch along the stream refers to ".....a strip of land 30 feet wide measuring from the eastern edge of the stream" which is ambiguous. The current neighbour has interpreted this as 30 feet from every point as the stream meanders (so it some places the land is over the fence line and in others it is under) whereas the original owners look to have taken 30 feet from the start, somewhere in the middle and somewhere at the end and fenced in a straight line between them. Also, what constitutes the "edge of the stream" given that it slopes down into the water? And by "eastern edge", this could be interpreted as being from the MOST eastern edge rather than all along. In any event, our argument is that the transfer document was interpreted the way it was 33 years ago and has remained unopposed since so can't be opened up for debate now just because they don't agree with the original interpretation.
rovpaul
 
Posts: 29
Joined: Wed Jan 27, 2016 10:51 am

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

Postby Collaborate » Tue Feb 02, 2016 2:28 pm

rovpaul wrote:The wording in the transfer agreement related to the stretch along the stream refers to ".....a strip of land 30 feet wide measuring from the eastern edge of the stream" which is ambiguous. The current neighbour has interpreted this as 30 feet from every point as the stream meanders (so it some places the land is over the fence line and in others it is under) whereas the original owners look to have taken 30 feet from the start, somewhere in the middle and somewhere at the end and fenced in a straight line between them. Also, what constitutes the "edge of the stream" given that it slopes down into the water? And by "eastern edge", this could be interpreted as being from the MOST eastern edge rather than all along. In any event, our argument is that the transfer document was interpreted the way it was 33 years ago and has remained unopposed since so can't be opened up for debate now just because they don't agree with the original interpretation.



I would interpret that as being from the most eastern point of the stream.
Collaborate
 
Posts: 1123
Joined: Mon Feb 23, 2015 10:17 am

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

Postby MacadamB53 » Tue Feb 02, 2016 2:50 pm

Hi rovpaul,

that wording describes the land being sold - where is the wording relating to the placement of the fence?

Kind regards, Mac
MacadamB53
 
Posts: 6028
Joined: Mon Dec 10, 2012 12:13 am

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

Postby rovpaul » Tue Feb 02, 2016 5:20 pm

MacadamB53 wrote:Hi rovpaul,

that wording describes the land being sold - where is the wording relating to the placement of the fence?

Kind regards, Mac


Hi Mac,
You're right, the wording given earlier refers to the land being sold. Elsewhere in the transfer agreement though it states "the Transferee for himself and his successors in title covenants with the Transferor....to erect a stock proof fence along the southern boundary of the land hereby transferred.....and along the east boundary of the land transferred". Given this wording and the written statement from the original owner that he always owned and maintained this fence, I believe either our neighbour is incredibly dim or is hoping that I am if he is maintaining that this is his fence on his land.
rovpaul
 
Posts: 29
Joined: Wed Jan 27, 2016 10:51 am

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

Postby rovpaul » Thu Feb 04, 2016 7:27 pm

Update: Neighbour has written advising that he accepts that the fence and land within it are ours, albeit without any hint of an apology and rather begrudgingly but at least its a resolution. He has also said that "if the fence is so important to us" he will accept it's ours. I can't see us exchanging Xmas cards anytime soon but at least we have closure. That said, I'm yet to see the fence reinstated but they have said that they would do so. I just want it back to how it was and to put it behind me.

Thanks to all for your generous advice and counsel. I hope I won't have reason to revisit anytime soon but, should any issues arise in the future, I'll definitely post back here.
rovpaul
 
Posts: 29
Joined: Wed Jan 27, 2016 10:51 am

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

Postby stufe35 » Thu Feb 04, 2016 8:42 pm

Thanks for letting is know the outcome, so few people do on here.

Glad it was a fair one.
stufe35
 
Posts: 781
Joined: Mon Nov 05, 2012 4:06 pm

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

Postby arborlad » Fri Feb 05, 2016 12:00 am

rovpaul wrote:Update: Neighbour has written advising that he accepts that the fence and land within it are ours,



That is the way it should be, with the fence defining and securing the land of its owner. Sometimes there is a willingness for aesthetics or some other misguided reason to see it the other way round. The land is the star of the show and the fence is playing a supporting role.
arborlad

smile...it confuses people
arborlad
 
Posts: 7384
Joined: Sun Jul 09, 2006 6:30 pm
Location: Hertfordshire

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.
 
PreviousNext

Return to Boundaries

Who is online

Users browsing this forum: No registered users and 4 guests

cron