Possible complex issue or maybe one simple question

Possible complex issue or maybe one simple question

Postby Whatsisname » Tue Sep 26, 2017 5:51 pm

Having read through a lot of the posts on here, I have found a lot of useful information, but nothing that quite answers the question that I am trying to find an answer to.

Our back fence is our responsibility according to our deeds, but the low timber post and wire fence that is there, is about 10m further into our land than it should be according to the figured dimensions on the plan on the original title deed. I am currently replacing the fence, and want to be sure that where I put it is the correct position.

The fence position within our land has been mapped by the OS, and when the property was registered 20 years ago, the land registry used the line on the map to indicate the extent of the plot on the title plan.

I have established that neither the OS nor Land Registry have the power to change our legal boundary, so in theory, the legal boundary remain as it was on the original deed.

The land to the rear is scrub land, and although it is privately owned, is used by the public, and has a couple of permissive bridleways across it

I have read as much guidance as I can find, around this issue, and it seems to boil down to one question:

Can adverse possession be deemed to have taken place if:
1. the previous owner of our title erected the fence, so there was no intention to possess on the part of the owners of the land behind
2. the land behind, along with the land in question, being open to the public was not in the exclusive possession of the adjacent owner 'to the exclusion of the world at large'

Any information either way would be gratefully received
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Re: Possible complex issue or maybe one simple question

Postby MacadamB53 » Tue Sep 26, 2017 7:00 pm

Hi Whatisname,

caution: I think it important to point out that just because a plan has measurements on it does not necessarily follow that these have a legal meaning.

kind regards, Mac
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Re: Possible complex issue or maybe one simple question

Postby Collaborate » Tue Sep 26, 2017 10:30 pm

MacadamB53 wrote:Hi Whatisname,

caution: I think it important to point out that just because a plan has measurements on it does not necessarily follow that these have a legal meaning.

kind regards, Mac


I profoundly disagree with this statement.
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Re: Possible complex issue or maybe one simple question

Postby MacadamB53 » Tue Sep 26, 2017 11:48 pm

Collaborate wrote:
MacadamB53 wrote:Hi Whatisname,

caution: I think it important to point out that just because a plan has measurements on it does not necessarily follow that these have a legal meaning.

kind regards, Mac


I profoundly disagree with this statement.
suppose a large suburban detached remains unregistered and some of the land is sold off - the back garden - for development.

the transfer would go through first registration - suppose someone mistakenly doodles the measurement "10 mile" beside an arrow drawn in the back garden on the plan...

...extreme example, but I hope this makes my point.

the owner can only transfer what he owns...

kind regards, Mac
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Re: Possible complex issue or maybe one simple question

Postby Collaborate » Wed Sep 27, 2017 11:18 am

Then it is no longer the plan. It is an altered document. That's not what you posted.
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Re: Possible complex issue or maybe one simple question

Postby Whatsisname » Wed Sep 27, 2017 11:33 am

Thanks both for your responses.

I am not concerned with the accuracy of the dimensions in the deeds. The first conveyance that defines the plot is drawn to a precise scale, noted on the plan. The figured dimensions noted to the nearest inch are correct, to the given scale. The lengths and angles of the other boundaries that exist are correct in that they correspond to surveyed boundaries as they currently stand. The plan also quotes the area to the nearest square yard, and when overlaying in CAD, this corresponds to within 0.5%. Considering that it is over 80 years old, it was clearly drawn with the skill and care of a draughtsman. The area noted on the plan is also used as the description in the conveyance.

As an Engineer, who has worked as a land surveyor, I can argue the point on the technical aspects. What I don't have experience of are the vagaries of law. :?
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Re: Possible complex issue or maybe one simple question

Postby MacadamB53 » Wed Sep 27, 2017 12:01 pm

Hi Whatsisname,

so if the plan is to respossess the missing patch of your land - why are you concerned about AP?

kind regards, Mac
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Re: Possible complex issue or maybe one simple question

Postby Whatsisname » Wed Sep 27, 2017 1:58 pm

MacadamB53 wrote:Hi Whatsisname,

so if the plan is to respossess the missing patch of your land - why are you concerned about AP?

kind regards, Mac


As I understand it, if the owner of the adjacent land can claim to have had adverse possession prior to 2003, then it would not be my land to repossess
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Re: Possible complex issue or maybe one simple question

Postby MacadamB53 » Wed Sep 27, 2017 2:55 pm

Whatsisname wrote:
MacadamB53 wrote:Hi Whatsisname,

so if the plan is to respossess the missing patch of your land - why are you concerned about AP?

kind regards, Mac


As I understand it, if the owner of the adjacent land can claim to have had adverse possession prior to 2003, then it would not be my land to repossess
ah - you mean someone else thinks they own it.

to answer your questions then.

1. irrelevant
2. if by "open to the public" you mean it is used by the public as of right - because the land is burdened with (or thought to be burdened with) PROWS - then I could see an AP claim being less difficult to achieve than if it's simply unfenced, but an AP claim in either scenario would likely prove difficult due to the point you've identified re "exclusive possession"

kind regards, Mac
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Re: Possible complex issue or maybe one simple question

Postby ukmicky » Thu Sep 28, 2017 1:10 am

Mac said just because a plan has measurements on it ,it does not necessarily follow that these have a legal meaning and I get what he was trying to say.



Someone obviously expected them to have a legal meaning and it could be argued they still do to some degree but that's not the issue you need to resolve. What really matters is how much legal weight will those measurement have if you tried to rely on them in court to prove where your legal boundary is . The answer may be very little unless your register of title has the words fixed boundary as it was built when the LRA 1925 was in force or the words determined boundary if updated under the LRA 2002 rules . Without those words you have a general boundary . Yes without those words you can use them as evidence in your case as to where your legal boundary is but they will not prove where your legal boundary is no matter how much you try and argue the technical aspects of the measurements .


Can adverse possession be deemed to have taken place if:
1. the previous owner of our title erected the fence, so there was no intention to possess on the part of the owners of the land behind.


Yes it can

You are thinking about the general requirements for adverse possession. However buried within the land registration act 2002 there is Clause 3 Paragraph 5 of schedule 6

The mistaken belief as to boundary

This ground may be relied upon where the applicant has been in adverse possession of land abutting their own under the mistaken but reasonable belief they owned it. There must have been no determination of the relevant boundary pursuant to section 60 of the LRA 2002 and the land the subject of the application must have been registered for at least one year prior to the date of the application. Clause 3 was specifically added for occasions where boundary features like fences have been incorrectly placed.


2. the land behind, along with the land in question, being open to the public was not in the exclusive possession of the adjacent owner 'to the exclusion of the world at large'



The words exclusion of the world at large does not mean everyone apart from the adverse possessor must be prevented from entering the land . I can adverse possess land and let my wife ,son ,daughter friends and anyone one else I give permission to to enter onto it and still gain it through adverse possession . A permissive path is not a public right of way and anyone that enters the land to use the permissive path does so with the permission of the landowner . They are visitors under the control of the land owner or adverse possessor and do not prevent a adverse possession claim.

Even if it was an actual public right of way ,clause 3 has a much easier AP criteria than the normal method and has no keeping the world at large out restrictions.
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Possible complex issue or maybe one simple question

Postby pilman » Fri Oct 13, 2017 5:35 pm

I would use the measurements on the plan and erect a fence along what is shown on a deed as the legal boundary of your land.

To imagine that adverse possession has any part to play in this scenario is making a decision based on theory rather than practice, because Land Registry make it absolutely clear that the red line on a title plan is a general boundary position most often based on existing features at the date of the survey by OS surveyors who produce the plans used by Land Registry.

A formal deed with accurate measurements shown on the plan annexed to the deed is better evidence to counter any claim regarding a title plan.

I also cannot imagine that the owner of land termed as scrub land is going to create any difficulty when a new fence is erected on land you can prove ownership of.
Just get on an do it.
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