Adverse possession dispute

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andrewpthall
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Adverse possession dispute

Post by andrewpthall »

Hi all. This question is in a couple of parts, but all related. My father in law built a large brick garden shed in 1999. He did not get planning permission. The shed was built inside his boundary line and existing fence line. The neighbour witnessed the construction of the shed back in 1999 and at no time contested the build, and since construction has never made any complaints in writing to any party. However, 2 years ago he started complaining that at corner of the roof was extending about 3-4 inches over his property. This corner is at a height of 2.6m and does not overshadow any aspect of his property. We are now trying to replace the wooden fence along the boundary and he is complaining again about the shed roof and saying that he will not give consent unless the shed is fixed and also that it was not built with permission. He has proved abusive and aggressive towards my elderly inlaws and I want to step in and help (I have been overseas for 20 years but am now back in UK).

I have tried to explain that after 20 years, the issue of the roof overhang is a non starter due I believe to 'adverse title' laws that put a time limit on redress. I also believe that the shed, whilst not having had planning permission, given it was built over 20 years ago, is also not an issue again due to the 4/10 year rules (4 years for council to dispute and 10 years of continued use).

Can anyone provide some clarity on whether the neighbour can now start to hold up a new fence and contest the boundary issue? I have read to party wall act and we are putting a wooden fence wholely on our land requiring no excavation, so I am comfortable with this.
Thanks
despair
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Re: Adverse possession dispute

Post by despair »

You are totally correct on all counts ...i would suggest the neighbour has got his facts wrong or is being beligerant
MacadamB53
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Re: Adverse possession dispute

Post by MacadamB53 »

andrewpthall wrote: Sat Oct 17, 2020 4:55 pm Hi all. This question is in a couple of parts, but all related. My father in law built a large brick garden shed in 1999. He did not get planning permission. The shed was built inside his boundary line and existing fence line. The neighbour witnessed the construction of the shed back in 1999 and at no time contested the build, and since construction has never made any complaints in writing to any party. However, 2 years ago he started complaining that at corner of the roof was extending about 3-4 inches over his property. This corner is at a height of 2.6m and does not overshadow any aspect of his property. We are now trying to replace the wooden fence along the boundary and he is complaining again about the shed roof and saying that he will not give consent unless the shed is fixed and also that it was not built with permission. He has proved abusive and aggressive towards my elderly inlaws and I want to step in and help (I have been overseas for 20 years but am now back in UK).

I have tried to explain that after 20 years, the issue of the roof overhang is a non starter due I believe to 'adverse title' laws that put a time limit on redress. I also believe that the shed, whilst not having had planning permission, given it was built over 20 years ago, is also not an issue again due to the 4/10 year rules (4 years for council to dispute and 10 years of continued use).

Can anyone provide some clarity on whether the neighbour can now start to hold up a new fence and contest the boundary issue? I have read to party wall act and we are putting a wooden fence wholely on our land requiring no excavation, so I am comfortable with this.
Thanks
you’ve got the gist right, maybe not the detail, but the time elapsed means the shed has effectively got planning permission and the neighbour can’t do much about any overhang.

that said, your in-laws and/or their contractor(s) don’t have a right to go onto his property to sort the in-laws fence out...

on a separate point, how do you know for certain that the issue has only just arisen if you’ve been away for the past 20 years?

kind regards, Mac
arborlad
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Re: Adverse possession dispute

Post by arborlad »

andrewpthall wrote: Sat Oct 17, 2020 4:55 pm............we are putting a wooden fence wholely on our land requiring no excavation, so I am comfortable with this.
Thanks



Can you expand on what you intend to here, please?
arborlad

smile...it confuses people
Collaborate
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Re: Adverse possession dispute

Post by Collaborate »

I'm not so sure that you have the requisite 20 years.

See the Winterburn case here: https://www.bailii.org/ew/cases/EWCA/Civ/2016/482.html

In Winterburn erecting a sign saying a car park is for use of members only prevented a chip shop owner from claiming a prescriptive easement for customers to park. It was the sign that meant that the landowners had done enough to prove that the use of the car park was not "as of right".

Therefore the fact that the neighbour, after less than 20 years, raised this as a dispute, means to me that there is no 20 years use as of right, and therefore a claim for prescriptive rights might fail.

In practice though the neighbour would have to issue court proceedings. Given the length of time it's been up before objection I'd imagine the court would refuse an injunction to remove the overhang and award nominal damages.
ukmicky
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Re: Adverse possession dispute

Post by ukmicky »

This is more of a case for a prescriptive easement not adverse possession.

Verbally disputing a trespass is not enough to prevent a claim.


Putting a sign up is deemed more of a substantial action and enough to prevent a claim as it costs money to purchase and erect and the message it provides is designed to survive many years.

As this is a continuous trespass as no substantial action was taken to stop the trespass it would also be hard for the neighbour to argue he did acquiesce to the trespass.

Then fence if it owned by the father in law is not an issue and he can’t stop it’s replacement over the roof dispute .Two separate things
Any information provided is not legal advice and you are advised to gain a professional opinion
Collaborate
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Re: Adverse possession dispute

Post by Collaborate »

ukmicky wrote: Sun Oct 18, 2020 4:01 pm This is more of a case for a prescriptive easement not adverse possession.

Verbally disputing a trespass is not enough to prevent a claim.


Putting a sign up is deemed more of a substantial action and enough to prevent a claim as it costs money to purchase and erect and the message it provides is designed to survive many years.

As this is a continuous trespass as no substantial action was taken to stop the trespass it would also be hard for the neighbour to argue he did acquiesce to the trespass.

Then fence if it owned by the father in law is not an issue and he can’t stop it’s replacement over the roof dispute .Two separate things
But if you read para 40 of the judgment it is clear that it is not the action of putting up the sign that is crucial, but the fact that the landowner made their position clear.
In my judgment, there is no warrant in the authorities or in principle for requiring an owner of land to take these steps in order to prevent the wrongdoers from acquiring a legal right. In circumstances where the owner has made his position entirely clear through the erection of clearly visible signs, the unauthorised use of the land cannot be said to be "as of right". Protest against unauthorised use may, of course, take many forms and it may, as it has in a number of cases, take the form of writing letters of protest. But I reject the notion that it is necessary for the owner, having made his protest clear, to take further steps of confronting the wrongdoers known to him orally or in writing, still less to go to the expense and trouble of legal proceedings.
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