Fence Erected outside Boundary on Plan

Re: Fence Erected outside Boundary on Plan

Postby Morgan Sweet » Thu May 05, 2016 10:17 pm

My son has spoken to the solicitor who did his conveyance and they are to meet next week. It was suggested by the solicitor to my son as Roblewis advised to send a letter. The complication is that the owner of the neighbouring property is a local property developer who contracts out work to my son. Although he does not rely on him for work he would prefer not to fallout with him. He just wants to understand his position if he comes to sell the land or has an adverse possession claim to deal with. I have noticed that the neighbour has made many planning applications during the last eight years all of which show his property as being where the land registry boundary is drawn and none include the triangle of land up to where he has erected the fence.
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Re: Fence Erected outside Boundary on Plan

Postby Morgan Sweet » Thu May 12, 2016 10:38 am

My son visited his solicitor on Monday and the advice was much as many of you suggested. Write a letter, but son does not want to fall out with him. Try and forget abut it, but it irks him. It appears that after 10 years of possession the trespasser can apply for adverse possession to the land registry. The land registry will then notify the owner of the title (my son) and he can object. This objection is not likely to succeed if the trespasser has land that adjoins the land in question and that the trespasser is under the mistaken belief that he owns all the land in question.

I wish that I had been at the meeting as I would have asked:-
a) how can the trespasser be unaware or mistaken when he erected the fence and is a builder who can read plans?
b) how can he not be aware of the LR boundary since all the many planning applications that he has submitted since buying and fencing off the land quite clearly show the extent of his property and where the boundary runs and also mention in the supporting notes the area of curtilage and the additional area of agricultural land he purchased (which is approximately half of what he fenced off)?
c) could my son transfer the section of land to me so it has a separate LR number and I could fight for it and if successful return it to my son?

I realise that I may be clutching at straws and the general advice of his solicitor, it's not affecting access or the value of the field, try and forget, could prove wise but it does not seem just that someone can take twice what was agreed and be perfectly lawful after 10 years.
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Re: Fence Erected outside Boundary on Plan

Postby Collaborate » Thu May 12, 2016 10:53 am

Morgan Sweet wrote:I realise that I may be clutching at straws and the general advice of his solicitor, it's not affecting access or the value of the field, try and forget, could prove wise but it does not seem just that someone can take twice what was agreed and be perfectly lawful after 10 years.


No - it isn't just. However your son has chosen not to take action, which is his prerogative. He presumably is prepared to accept the consequences.

There is a process that he must follow if he wants to take action. It doesn't involve use of a magic wand.
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Re: Fence Erected outside Boundary on Plan

Postby pilman » Thu May 12, 2016 4:16 pm

could my son transfer the section of land to me so it has a separate LR number and I could fight for it and if successful return it to my son?
It now costs less than £20 to form a limited company.

If a company was formed with a single director and a single share of £1 was issued that information would be public knowledge through Companies House.

What is now needed is a willing accomplice prepared to form the company and agree to buy the area of land between the erected fence and the original line on the plans when the land was sold by the deceased land-owner.

That sale would also require a granted right of way over the retained land owned by the poster's son in order that access could be gained to that land, unless it has road frontage already.

A simple option agreement would also be agreed between the company and the son allowing the son to buy back the property within a stated time scale at a confirmed price, which option can be shown to be for a number of years.

Then the new owner of the land who will need to spend £40 registering the land, which will be transferred for a neglible amount of consideration, so that the son will not be liable for any capital gains tax and the application to Land Registry will not require the ID1 identity forms that would be needed for a sale worth more than £6,000.

So for a total outlay of £60, which is a lot less than asking a solicitor to write a letter, the limited company can arrange to fence off the part of the land that was not included in the sale to the neighbour 8 years ago. If this land was to be used for grazing purposes for an animal, then the trees would need to be removed from the land as soon as the boundary fences are in their correct positions.

In fact that whole procedure can be done with the poster as the new owner rather than a new company, although the earlier comments about the son not wanting to upset the neighbour will need to be considered whichever option is chosen.

The point here is that Land Registry will issue a new title number with its own register and title plan which ought to be referenced to the Transfer form or conveyance that was executed 8 years ago, which will need to be specifically referred to when the new Transfer form TP1, for transfer of part of a registered title, is signed by the son.

Reference to the earlier deed will confirm where the boundary of the land adjacent to the part sold to the neighbour will be.

Then the new owner of the triangle can fence to the full extent of the property, using the earlier plan and the new plan as clear evidence of the correct position for this new boundary fence. That will mean that the cost of erecting the new fence will have to be met by the new land-owner

The alternative is to write directly to the neighbour, without a solicitor being involved, explaining that the current land-owner is not prepared to relinquish possession of the area of land he purchased, which he is currently unable to readily access, because the fence was erected in the wrong position. Set a time limit to when that existing fence will be removed and a replacement fence will be erected in the position shown in the transfer or conveyance dated 8 years earlier.
That will mean that the cost of erecting the new fence will have to be met by the son as current land-owner

Whereas the Land Registry will only ever confirm that the red line drawn on a title plan is an indication of the General Boundary of the property, a plan drawn to scale on a transfer or conveyance defined the legal boundary of the land being conveyed.

Don't wait for the 10 years period of possession to pass, would be my advice.

Do something now, unless the son really is concerned that upsetting the neighbour is something to be avoided at all costs.

As a further alternative, calculate the value of the extra land and offer to transfer it to the neighbour for a price based on the true value of the land now used as garden land.
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Re: Fence Erected outside Boundary on Plan

Postby Morgan Sweet » Thu May 12, 2016 9:03 pm

Thank you both Collaborate and especially Pilman for taking the time and writing such a detailed reply. I have not yet fully digested the information (it may take me some time). The position is that my son is annoyed and feels a little cheated and would like the situation to be as both the LR and Land Agent's plans show but the complication is that the neighbour employs my son for tractor/digger work, topping, hedge cutting and for hauling materials. He can easily make a living without this developer's work but is nervous in challenging the situation. I will speak to my son this weekend and perhaps suggest he writes a polite letter asking why the fence is not in the position that all the plans show. Would such a letter put a stop on the adverse possesssion clock or would it have to be followed up with expensive legal action? What would be the process if he writes a letter? He is also concerned that he will get into a boundary dispute and if so will have to declare it if he wants to sell the field. However if he gets no response from his letter he could transfer the triangle to me and I would then have the dispute about the boundary. Any advice regarding the wording of a letter would be appreciated.
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Re: Fence Erected outside Boundary on Plan

Postby kadgeb » Wed Jun 29, 2016 6:59 pm

pilman wrote:
A simple option agreement would also be agreed between the company and the son allowing the son to buy back the property within a stated time scale at a confirmed price, which option can be shown to be for a number of years.



Hello,
Would the son's buying back the property from the company trigger a capital gains liability on the company? Wouldn't the low consideration given cause hmrc to view it as a market value disposal?
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Re: Fence Erected outside Boundary on Plan

Postby arborlad » Fri Aug 25, 2017 8:50 am

Collaborate wrote:Notch can be done about the trees. If he succeeds in regaining the land he'll have to remove them himself.

One wonders why the previous owner never asserted his rights? It's often subsequent owners who have to pick up the pieces.




..............very true - given the current circumstances.

viewtopic.php?f=4&t=20907
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smile...it confuses people
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Re: Fence Erected outside Boundary on Plan

Postby Morgan Sweet » Sat Aug 26, 2017 11:36 pm

Thank you arborlad for finding my earlier post, I appreciate that it would have been better to have continued with it rather than starting new posts but as circumstances have changed I thought that it would become too complicated. I now own all the land and have written to the neighbour to re-site the fence with little progress. He flatly refuses to move it. I have now sent for an AP1 and TP1 form and a copy of the original TP1 when the section of land was bought by the neighbour in order to transfer the land in dispute from my wife and my title to a new separate title under just my name with a new title number. I am at present re-reading pilman's advice on this thread how to reference it etc. but do confess to not fully understanding what I have to do and my solicitor did seem rather vague when I suggested it to him.
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Re: Fence Erected outside Boundary on Plan

Postby Morgan Sweet » Sun Aug 27, 2017 9:31 am

Pilman advised me that:

The point here is that Land Registry will issue a new title number with its own register and title plan which ought to be referenced to the Transfer form or conveyance that was executed 8 years ago, which will need to be specifically referred to when the new Transfer form TP1, for transfer of part of a registered title, is signed.

Reference to the earlier deed will confirm where the boundary of the land adjacent to the part sold to the neighbour will be.

I have the OS map on A3 paper 1:500 scale that the Chartered Surveyor used when the land was purchased by the neighbour. It shows the land transferred in 2008 as a red hatch on the map between points A and B. Up-to date OS maps now show where the neighbour erected the fence. I presume that if I now obtain a A3 1:500 scale similar OS map that the Chartered Surveyor used showing where the fence has been erected, the area I need to mark off is the difference between the two maps that I have to show as a new red hatched area. I am waiting for a copy of the TP1 from the Land Registry used in 2008 but have a blank TP1 and AP1 in order to complete the transfer of this section of land that was incorrectly fenced off from my wife and my ownership to just my ownership. However I am not really clear how I specifically reference it as pilman advised me to do.

Question 1 on TP1 - our title number

Q2 - other title number(s) against which matters against which matters contained in this transfer are to be registered or noted, if any - is there where I put the title number of the section of land that was transferred to the neighbour in 2008?

ie How do I ensure that the transfer is correctly and specifically referenced to as pilman has advised?
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