Have I lost the land?

Have I lost the land?

Postby xxredmaxx » Sun Sep 10, 2017 9:31 am

Hi All

Thanks for accepting me on to this great forum.
I have learnt so much whilst waiting to be registered and grateful for any assistance with a problem I and my wife have stumbled into.

I thought it sensible to write a (sorry lengthy) background with as much info as possible. I do have some photos, title deeds and old photos from Google too and may post later.
I know it’s long but wanted to offer as much info as possible.

I thought I would then post a follow up post in the thread with all my questions because I have loads but my head is jumbled and I am trying make sense of my legal position.



Background
Purchased house in 2013
House is simple semi-detached cottage built together with neighbours circa 1920.
Our title plan shows boundary running straight through the two properties from front to back and down the garden in a continuous line.
At the end of our gardens is a school built the same time. The title plan boundary can be referenced against an air raid shelter that is still in situ in the school.

When we bought the property we were not asked by our conveyancer to check the boundary.

I do have seller information form and the seller has answered NO to questions:
• Has boundary feature been moved in last 20 years?
• Has any land forming the property been sold or has any land adjacent been purchased?
• Does any part of the property project or overhang the boundary of the neighbouring property?

The property was in quite poor condition and because I have young children our priority was to improve the internals e.g. bathroom, kitchen and bedrooms. I have spent the last four years renovating the house including sorting out damp issues, chimney issues etc. It’s been a long time but we have now moved on to the garden and I took my annual holiday of the last two weeks in August 2017 to begin extensive landscaping including repairing fences along my neighbour’s boundary.

I can honestly say that I have paid no attention to the fence and just presumed it to be where it is roughly on the title plan of the property we purchased.

During this works it became noticeable that the fence in its current position is running substantially across the title boundary starting at the correct positon at the rear of the two properties but running diagonally to the end of the garden.

The triangle of land I estimate to be between 25 – 30 square metres of land so not insignificant.

Whilst waiting for y registration to be approved I have tried to read as much advice and look for similar situations on this forum and concluded that trying to keep this matter civil and amicable with our elderly neighbours must be a priority to avoid escalation, costs and irreparable damage to the relationship.

Our neighbours are very elderly being 80 ish yrs old and have lived in their house since 1969. Their purchase therefore predates any requirement to register title so no register exists with HMLR

My property however has been bought and sold at least 3 times since and general boundary is down the middle.

What have we done so far?

Last Monday we plucked up the courage to speak to our neighbours and very gently enquired as to the history of the fence position and showed the title plan for our property and explained that whilst we are not making any accusations against them we are curious as to the contradiction.
We made it clear had the issue been over a small piece of land (1 foot) then we probably would not be having the conversation as we are not petty people and quite relaxed and easy going.
We have no desire to upset or cause stress especially for one’s so old but we did ask did he buy the land or was gifted the land?
He replied “No” and as far as he can remember the boundary was always there at least since 1969.

I explained that I was not satisfied with losing so much of our garden unless it has been done legally and would really like to establish the legal boundary back to down the middle of the house.

We left it like that as we did not want to pile pressure on and understood they would need time to process the information. It was cordial and amicable.

We followed up yesterday to see if they had anymore thoughts on how to progress and the atmosphere was quite frosty.
Neighbour stated that the land had automatically become his and he was not doing anything.
He stated that if we persisted in talking about the issue we would be responsible for his illness and premature death.
He loves his garden and it’s the only thing that keeps him going and if we take back the land it will “kill him”
We explained patiently that we had no desire to cause upset but we believe we have a claim to the land and we ae equally upset and stressed and it’s an uncomfortable conversation to be having.

The neighbours have been invited onto our property many times over the last four years but have always politely declined. We have visited their garden many times because he has extensive planting and it’s his main pastime and he loves showing it off.

We invited them both around to view the boundary from our side so they could get an idea of what we are saying and the impact upon our living space.
After 15 minutes of resistance and refusal he finally conceded and both neighbours came round.
They both saw for themselves and accepted the bend was significant and obvious and did say it’s not noticeable from their side.

They said they had seen a solicitor and advised the land was theirs. I said I think you need to formalise that by making an application for AP to the LR.
If that happens we will be notified and we will object but will abide by any legal resolution if not found in our favour.

I appealed to his sense of right and wrong but not sure if I had any effect.

My obvious questions are:

Is the land his now?
Does he need to do anything to formalise it or just sit tight and do nothing?
How can I establish the legal boundary in accordance with the title plan as close as possible which is fairly logical. Straight down the middle of the houses?
Can I just erect a fence where I think the legal boundary is and then let neighbour challenge it? Is that legal? In effect reclaim the land as my own based on title or what I believe to be title.

Has the sale of my house been misrepresented?
I was not told or informed to check boundary. I have never bought a pre-owned house before and relied on my solicitor to ensure the sale was done correctly.
Has the seller misrepresented the property boundary becasue its nothing close to the title plan?
xxredmaxx
 
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Re: Have I lost the land?

Postby Eliza » Sun Sep 10, 2017 9:58 am

Well I guess it's progress of a sort that you are now quite clear it is your land. He has admitted it's yours. The thing about stealing someone else's land by adverse possession though is that I gather the would-be thief (ie this elderly neighbour) is darn soon advised to never admit that the land belongs to the real owner and to carry on insisting that it's their land (even though they know very well it isnt).

I don't suppose you could get any sort of proof from him of what he said to you - ie admitting it's yours - as that would help scupper any claim he puts in for adverse possession of it?

The other possible thing is to try and be as patient as possible, ie until next door house is empty and up for sale, and then take back the rest of your garden (by moving the fence to the correct position).

It sounds as if they're pretty elderly and I'd be inclined, in your position, to wait it out for that house to be empty and then move the fence.

You have to weigh up the circumstances, ie whether there is a greedy beneficiary of their Will that would be out to fight you tooth and nail to retain that part of your garden. But, on balance, that is probably your best option and try and be as patient as you can whilst you wait for the chance to get that bit of your garden back again.

Third possibility is to offer to sell that bit of land to him - but I suspect that wouldn't work and he'd refuse to buy it and start lying loudly and saying it was his anyway.

NB; Have you got a Land Registry Property Alert on your property? It's free to register a Property Alert with the Land Registry against your property and the LR will tell you if there is any "activity on your account". The main reason I suggest this is I believe it's also possible to add a property one doesn't own onto that Property Alert account of yours. So you could add his property to your Property Alert list (think it's up to 10 properties one can have on one's account) and you would be told if someone was trying to Register his property and/or your bit of garden.

Also be prepared for the fact this neighbour may now be nipping off behind your back and Registering his house anyway (ie right now - before it gets sold on his death) and I expect it would include trying to Register your bit of garden as his.
Apologies for not giving exact personal details in my posts - you never know who is reading....
Eliza
 
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Re: Have I lost the land?

Postby arborlad » Sun Sep 10, 2017 10:20 am

xxredmaxx wrote:My obvious questions are:

Is the land his now?



Yes - it never was yours.
arborlad

smile...it confuses people
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Re: Have I lost the land?

Postby xxredmaxx » Sun Sep 10, 2017 10:28 am

arborlad wrote:
xxredmaxx wrote:My obvious questions are:

Is the land his now?



Yes - it never was yours.


Hi arborlad

Ok so is there anything I can do?
Does he need to do anything to formalise it?

Are you able to answer my other questions?
If the land was never mine but the title deed gives a general boundary that is so wrong has the sale been misrepresented?

What if I just put up a new fence in a place where I consider the boundary to be. The land is now mine. I've done nothing more then he has - right?
xxredmaxx
 
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Re: Have I lost the land?

Postby xxredmaxx » Sun Sep 10, 2017 10:33 am

Hi Eliza

What kind of proof are you thinking?

They have 3 children who visit regularly but don't help in the garden which he has bemoaned to me.
They are all indeed no doubt waiting to inherit and sell and yes I do think they will want to fight just for the hell of it really
Can I move the fence legally as you describe if the house went on the market empty?

Whats really frustrating is that he doesn't seem to have to do anything and the longer he does nothing the worse it is for me.
xxredmaxx
 
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Re: Have I lost the land?

Postby arborlad » Sun Sep 10, 2017 11:12 am

xxredmaxx wrote:I can honestly say that I have paid no attention to the fence and just presumed it to be where it is roughly on the title plan of the property we purchased.




What type of fence is it?
arborlad

smile...it confuses people
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Re: Have I lost the land?

Postby xxredmaxx » Sun Sep 10, 2017 11:29 am

arborlad wrote:
xxredmaxx wrote:I can honestly say that I have paid no attention to the fence and just presumed it to be where it is roughly on the title plan of the property we purchased.




What type of fence is it?


Its a willow panel type.
From the house end the boundary starts as wall about 8' long at an angle of about 45 degrees into our garden.
The willow fence then starts at the end of the wall and goes down the length of the garden at a further angle from the party line
There are then 8 panels 6' wide.
xxredmaxx
 
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Re: Have I lost the land?

Postby xxredmaxx » Sun Sep 10, 2017 11:37 am

Eliza wrote:NB; Have you got a Land Registry Property Alert on your property? It's free to register a Property Alert with the Land Registry against your property and the LR will tell you if there is any "activity on your account". The main reason I suggest this is I believe it's also possible to add a property one doesn't own onto that Property Alert account of yours. So you could add his property to your Property Alert list (think it's up to 10 properties one can have on one's account) and you would be told if someone was trying to Register his property and/or your bit of garden.

Also be prepared for the fact this neighbour may now be nipping off behind your back and Registering his house anyway (ie right now - before it gets sold on his death) and I expect it would include trying to Register your bit of garden as his.



Blimey Eliza talk about prescient!

The daughter has just knocked and asked us to back off because her father is not taking it well.
We are pleased to be able to talk to the daughter who was very open to our predicament and understood we mean no malice.
It was a very amicable and cordial meeting on our doorstep.

They have informed us that they are in the process of registering their property with HMLR. Is there any way they can register the piece of land that is in contention? Surely its not possible to have overlapping title boundaries?

I have set up a property alert on my property but unable to do same on neighbours as it comes back unregistered as of today's date.

I took the opportunity to invite the daughter to view the current boundary from the loft room which looks out onto the back garden and shows the full extent of the fence and its angle down the garden.
After seeing it she accepted why we have questioned the position and could see it does not look right - is that progress?
xxredmaxx
 
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Re: Have I lost the land?

Postby MacadamB53 » Sun Sep 10, 2017 12:47 pm

arborlad wrote:
xxredmaxx wrote:My obvious questions are:

Is the land his now?



Yes - it never was yours.
+1

I'm afraid your understanding of what an OS map is for is flawed.

the OS simply plotted a straight line where on the ground there is a slight bend - a perfectly acceptable thing for them to do given their remit isn't to be 100% accurate for your benefit...

my advice is to not take this forward any further unless you have some burning desire to be one of those folk who can't admit when they're wrong.

kind regards, Mac
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Re: Have I lost the land?

Postby xxredmaxx » Sun Sep 10, 2017 1:11 pm

MacadamB53 wrote:
arborlad wrote:
xxredmaxx wrote:My obvious questions are:

Is the land his now?



Yes - it never was yours.
+1

I'm afraid your understanding of what an OS map is for is flawed.

the OS simply plotted a straight line where on the ground there is a slight bend - a perfectly acceptable thing for them to do given their remit isn't to be 100% accurate for your benefit...

my advice is to not take this forward any further unless you have some burning desire to be one of those folk who can't admit when they're wrong.

kind regards, Mac


Thank you Mac
I do understand that due to scale of the maps small deviations can occur. The point is that the dividing line of the boundary is not a "slight bend". The fence runs down the garden diagonally so at the end its at least 3 metres over to my side. I also appreciate over time fences get moved or as I believe in my case the two gardens were unfenced and bushes and trees etc just grew blurring the line. It was of no interest to the previous occupiers etc.
Its not about believing I am right. The reason I came on here is to understand my rights if any and if I have any way of legally challenging the current position.

From what you are saying am I correct to presume that when he registers his property with HMLR which I have no doubt will be issued with a straight line as it is on my title plan that we will still be in the same position?
He will say it may be a straight line on the OS map but really its angled and I will say it should be a line perpendicular off the end of the properties at the place they abutt?

The only glimmer may be if he agrees with me and agrees to move the boundary?

I thank you for your advice and can assure you I will not be spending money on solicitors etc. I'd rather have an easy life.
I just wanted to be sure I was not missing a legal opportunity to redress if one existed.

According to you the answer is no it seems.
xxredmaxx
 
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Re: Have I lost the land?

Postby Eliza » Sun Sep 10, 2017 2:22 pm

You may be best off at this juncture to stick to idea of moving fence when next door is unoccupied and working out what your "worst case analysis" situation is if his adult children try and argue the toss and move it back again.

Perhaps, at that point, you could appoint a surveyor to act on your behalf and confirm where the boundary really lies - ie possibly just before you move the fence to correct position, in order to confirm that it is indeed correct position. I'd guess your worst case analysis would be them getting rather insistent about you moving it back again or maybe moving it back again to the original trespassing position themselves.

Best to think through all options and discuss it with your husband - and ask Land Registry again in a few weeks time for a copy of this Title Plan and Registry entry he is about to have on his house.

He's got a nerve to first of all try emotional blackmail (the "I'll be so upset if you have that bit of your garden back" stuff he came out with) and then send in one of his adult children to try and persuade you out of it. He must be pretty convinced that it is indeed part of your garden to be trying these tactics on you.

If he wants it that much then why isnt he trying honest/direct/non-manipulative tactics with you, eg offering to buy it off you?

Probably a good idea to ring Land Registry direct and talk to them and explain next door is in process of being Registered because he is using a bit of your garden and ask if there's a way (I think there might be?) to ensure you are notified if he tries to include that bit of your land on his Title entry.
Apologies for not giving exact personal details in my posts - you never know who is reading....
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Re: Have I lost the land?

Postby Morgan Sweet » Sun Sep 10, 2017 2:30 pm

I am in a similar situation but it has passed the stages of letter writing, Chartered Surveyors, mediation and reasoning etc. and now costing me big money for legal action involving solicitors, I am talking about approx. 500 square metres of land.

I have NO legal qualifications whatsoever and what follows is only my opinion based on what I have been told/experienced in my dispute and a similar dispute.

Firstly, check, have you legal insurance that could help you? (I have not and I regret letting it slip for one year.)

Based on your evidence you have not lost the legal title to the land but have not the possession of the land.

If your LR plan clearly shows a difference with respect to reference points ie long established stone wall/buildings etc and you are not arguing over the thickness of the lines on the plans then the fence is in the wrong position. Depending on the scale used, three metres is pushing the tolerances. If so then the land title is yours and if it were your fence then in theory you can move it to take back the land and then put the ball in his court if he objects. However before taking that action (last resort) if the fence belongs to him then you should ask him to move the fence to the position shown on the LR plan You will need to write to him with the clear evidence that the fence is not in line with the legal boundary and get him to acknowledge your letter. He then should not be able to satisfy the condition that he had always thought that the land was his and bringing it to his attention should prevent him claiming adverse possession (AP). The problem is that that even if he tries to claim AP and you prevent him, it still remains for you to get your land back within 2 years of an unsuccessful claim or if you do not, then he can reapply and then succeed.

The question is, how much is this land worth to you? Conservatively with a good solicitor considering your evidence and the neighbour moving his fence after the solicitor's letter, you could be looking at around £600. If he wants to fight it then it will cost you much more although you would hope to recover some of your costs if you win. If you take this route and your case is sound it should then cause him to also seek legal advice (costing him money) and he would be hopefully informed that your case was stronger and then he would agree to move the fence. If he decides to fight it then he should provide you with his evidence that the fence is correctly sited for you to consider before any court case. This will cost you more to prepare for court and should you win, it will cost the neighbour much more. Let's hope that he sees sense. Your initial letter should provide evidence and suggest mediation and/or a joint declaration of the boundary (costs about £2k that you would share and both would accept the decision of the Chartered Surveyor).

It is often advised by many people to just accept the situation and if you were planning to move then I may concur with that advice. However it all depends if you plan to and can live long term with the situation, I can't (just my nature) it irks. Most boundary disputes are over feet and inches when it changes to yards or greater distances the evidence I believe moves in your favour. It all depends whether you principals can be funded. If you want to fight it you do need professional legal advice, however most disputes are settled without going to a court and hopefully a letter and reason will suffice.
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Re: Have I lost the land?

Postby Morgan Sweet » Sun Sep 10, 2017 3:21 pm

Timed out.

To continue, once you have a dispute you should declare this when/if you sell. This fact alone may encourage them to settle the dispute before they sell their property. They can only settle the dispute if they buy the land from you or gain it by AP or a court found in their favour.

If you fail (due to lack of resources) to recover the land, you too would have to declare the dispute when you sell, but what is in your favour, if you decide to sell, is that you could transfer the land in dispute from your Title to another Title. A prospective buyer would be informed about the dispute but the dispute would be settled since he would buy what is now shown on your house's Title up to the fence without the disputed land. To transfer the disputed land you must transfer to a different owner ie wife and husband own land A but can only transfer part of land A to new Title to either husband or wife (or anyone else) not to husband and wife.

If you want to get the land in your control act now, it is what you legally bought and the neighbour is trespassing upon it. A letter as mentioned before and explaining the dispute can disadvantage a house sale unless resolved may resolve the situation.
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Re: Have I lost the land?

Postby xxredmaxx » Sun Sep 10, 2017 3:47 pm

Thanks for the comments Eliza and Morgan Sweet



AM I ABLE TO UPLOAD A PDF PLEASE? HOW DO I DO IT.

I could then show you a redacted copy of the LR title plan. I can indicate where the boundary actually is in relation to the title boundary. can it really be within tolerance of OS mapping?
Just for clarity I believe it is more than just a thickness of a line on a 1:1250 drawing.

There are structures on adjoing land (a school built in 1925) that have been in place for decades.
The OS map clearly shows my boundary running down the garden and just over the fence is an air raid shelter obviously built in at least 1939-40. The building is still there untouched and in same location. I have not tried to map its location but I can do this from the school entrance which also has not changed in nearly 90 years!
My boundary should run into it the air raid shelter but my boundary is nowhere near it. Its at least 3 metres away.

I also have a Google earth photo dated 2000 showing no fence like the one in place now. I'm no expert but the photo suggests no fence at all but I appreciate that is speculative.
There is an aerial photo dated 2005 showing the fence and its angled boundary.
My property was then sold in 2006. I understand the owner did not get on with the neighbour.
I then purchased the property in 2013 from the person who purchased in 2006
Thx
Last edited by xxredmaxx on Sun Sep 10, 2017 3:56 pm, edited 1 time in total.
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Re: Have I lost the land?

Postby xxredmaxx » Sun Sep 10, 2017 3:49 pm

Morgan Sweet wrote:Timed out.

To continue, once you have a dispute you should declare this when/if you sell. This fact alone may encourage them to settle the dispute before they sell their property. They can only settle the dispute if they buy the land from you or gain it by AP or a court found in their favour.

If you fail (due to lack of resources) to recover the land, you too would have to declare the dispute when you sell, but what is in your favour, if you decide to sell, is that you could transfer the land in dispute from your Title to another Title. A prospective buyer would be informed about the dispute but the dispute would be settled since he would buy what is now shown on your house's Title up to the fence without the disputed land. To transfer the disputed land you must transfer to a different owner ie wife and husband own land A but can only transfer part of land A to new Title to either husband or wife (or anyone else) not to husband and wife.

If you want to get the land in your control act now, it is what you legally bought and the neighbour is trespassing upon it. A letter as mentioned before and explaining the dispute can disadvantage a house sale unless resolved may resolve the situation.


Hi

Can you explain the transfer of the disputed land in a bit more detail please? I am interested in what you say about this.

Thx
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