Selling Land under adverse possession

Selling Land under adverse possession

Postby Elisabeth » Sun Sep 11, 2016 6:55 pm

We cleared a piece of council land adjoining our property more than 30 years ago and have applied to the Land Registry for adverse possession. The land is part of a much larger plot.The whole plot including the piece in question has recently been "Sold subject to contract" Where do we stand? Advice much appreciated.
Elisabeth
 
Posts: 8
Joined: Sat Sep 03, 2016 11:35 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: Selling Land under adverse possession

Postby mr sheen » Sun Sep 11, 2016 7:37 pm

Clearing land owned by someone else is not enough to be successful in AP. You would have had to exclude the owner and all others ie have fenced it off and made it clear that your intention was to occupy it and claim it as your own.
Did you do this?
mr sheen
 
Posts: 2093
Joined: Fri Feb 27, 2009 3:33 pm

Re: Selling Land under adverse possession

Postby Elisabeth » Mon Sep 12, 2016 7:24 am

Sorry I omitted to say that we have used the land exclusively for the duration. You do not actually have to fence it off, although it helps.You just have to prove that you have had exclusive use and use it as your own. We have done this and provided Witness statements to this effect. I am interested in the legality / pitfalls of the land being sold whilst it is undergoing an AP claim.
Elisabeth
 
Posts: 8
Joined: Sat Sep 03, 2016 11:35 am

Re: Selling Land under adverse possession

Postby arborlad » Mon Sep 12, 2016 9:09 am

[quote=]"Elisabeth" You do not actually have to fence it off, although it helps.[/quote]



Although not essential, it is highly desirable to have the land fenced.

If a stranger were to walk past the land in question, would he be left in no doubt that the land was yours?
arborlad

smile...it confuses people
arborlad
 
Posts: 7386
Joined: Sun Jul 09, 2006 6:30 pm
Location: Hertfordshire

Re: Selling Land under adverse possession

Postby Elisabeth » Mon Sep 12, 2016 9:23 am

Yes because although not fenced it is bordered by shrubs and trees. It also appears well tended in comparison to the rest of the land.We are awaiting a decision, What I am interested in is that the whole plot including the piece in question is being sold and has not been marketed by the agents as under AP
Elisabeth
 
Posts: 8
Joined: Sat Sep 03, 2016 11:35 am

Re: Selling Land under adverse possession

Postby MacadamB53 » Mon Sep 12, 2016 9:40 am

Hi Elisabeth,

these shrubs and trees - do they prevent the owner from accessing the land?

if not you've not really been in AP.

Kind regards, Mac
MacadamB53
 
Posts: 6034
Joined: Mon Dec 10, 2012 12:13 am

Re: Selling Land under adverse possession

Postby arborlad » Mon Sep 12, 2016 10:05 am

Elisabeth wrote:Sorry I omitted to say that we have used the land exclusively for the duration. You do not actually have to fence it off, although it helps.You just have to prove that you have had exclusive use and use it as your own. We have done this and provided Witness statements to this effect. I am interested in the legality / pitfalls of the land being sold whilst it is undergoing an AP claim.




Unless there is something we are unaware of, it doesn't seem as though the paper owner has done anything wrong.

You have made a claim of AP which may fail, why didn't you claim when you had the required 10/12 years of possession?

Are there development plans for the whole plot?

Did you only make your AP claim when you became aware the whole plot was on the market?
arborlad

smile...it confuses people
arborlad
 
Posts: 7386
Joined: Sun Jul 09, 2006 6:30 pm
Location: Hertfordshire

Re: Selling Land under adverse possession

Postby Elisabeth » Mon Sep 12, 2016 10:17 am

We did not bother to claim initially but were advised to go so.The claim was in process well before the land went up for sale. I am not aware of any plans to redevelop the site as yet.
Elisabeth
 
Posts: 8
Joined: Sat Sep 03, 2016 11:35 am

Re: Selling Land under adverse possession

Postby mr sheen » Mon Sep 12, 2016 1:53 pm

The landowner has not been excluded from the land and has put land that he owns up for sale.
You will have to prove that you excluded the council from their land for however many years you are claiming and that it was clear that it was your intention to occupy and claim the land yourself and this may prove difficult.

Tending land does not exclude the owner and just because some is tended and some not does not exclude the owner. Lots of council land is surrounded by trees and shrubs. Since you did not fence it off it may prove difficult to prove AP since the council could have turned up at any time and gone onto their land and you may not have known about it and had not prevented that happening via fencing that would have alerted the owner of your intention. So you have all to prove and the landowner has done nothing wrong, he still owns the land until such time as someone else proves different.
mr sheen
 
Posts: 2093
Joined: Fri Feb 27, 2009 3:33 pm

Re: Selling Land under adverse possession

Postby Eliza » Mon Sep 12, 2016 6:38 pm

I note your words "the claim was in process" - ie the Land Registry have not awarded the Council land to you.

I would have thought it's unlikely the Land Registry is going to let you steal the land now - as they would have to notify the owner of the land (ie the Council) and they would be pretty likely to be able to prove it's still their land (ie you've not bought it and you've not fulfilled the criteria to legally steal it).

Add the Council can probably afford hot-shot solicitors to deal with this. I doubt this would go in your favour.

Best to just "count your blessings" that you've had the free use of someone else's land for so long and put it down to experience that you no longer can.
Apologies for not giving exact personal details in my posts - you never know who is reading....
Eliza
 
Posts: 301
Joined: Sun Jun 01, 2014 6:28 am

Re: Selling Land under adverse possession

Postby MacadamB53 » Mon Sep 12, 2016 7:47 pm

Hi Elisabeth,

I assume from how you've phrased things the landowner is aware of your claim (?) so they have a legal duty to declare this on the Sellers Property Information Form (aka SPIF, aka TA6 form) so that potential buyers can make an informed decision - failure to do so may see them paying compensation to the buyer.

Kind regards, Mac
MacadamB53
 
Posts: 6034
Joined: Mon Dec 10, 2012 12:13 am

Re: Selling Land under adverse possession

Postby Elisabeth » Tue Sep 13, 2016 8:51 am

Thanks everybody for you comments especially Mac for your useful info.
Elisabeth
 
Posts: 8
Joined: Sat Sep 03, 2016 11:35 am

Re: Selling Land under adverse possession

Postby Roblewis » Tue Sep 13, 2016 12:20 pm

Mac

Not necessarily a SPIF as this could well be a commercial sale covered by due diligence. Same effect though.

I can also see that that there is an argument that the landowner has taken no steps to recover or manage the land themselves so have in effect been excluded. It is about whether the actions taken are commensurate with an owner in possession not necessarily about total exclusion. Hedges and shrubs can be control indicators. Failure to take control by the owner has been found to negate a recovery action, even saying leave this land without enforcement can cause an owner to lose a claim against AP
Roblewis
 
Posts: 1764
Joined: Mon Jan 24, 2011 12:41 pm

Re: Selling Land under adverse possession

Postby jonahinoz » Tue Sep 13, 2016 8:49 pm

Hi,

Probably academic ... ignoring the Adverse Possession claim ... if Elisabeth had been taking a short cut from her "paper" back garden to somewhere further up the road, or maybe the next street, or perhaps to take her wheelie bin out, or had been grazing/browsing her goat, parking her car, etc, for 20 consecutive years, could she claim a prescriptive easement? Could that easement be traded for a smaller portion of the land?

602
jonahinoz
 
Posts: 1346
Joined: Fri Aug 05, 2011 5:15 pm

Re: Selling Land under adverse possession

Postby Elisabeth » Wed Sep 14, 2016 3:25 pm

Thanks for some interesting comments there. In all the years we have been here nobody has ever tried to reclaim the small parcel of land. It is very evident that we are using and tending it. As an iside there is a dilapidated empty house on the plot and the rest of the land is overgrown
Elisabeth
 
Posts: 8
Joined: Sat Sep 03, 2016 11:35 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.
 
Next

Return to Boundaries

Who is online

Users browsing this forum: No registered users and 7 guests