Developer Claiming Boundary is Incorrect

70sThrowback
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Developer Claiming Boundary is Incorrect

Post by 70sThrowback »

Hi All,

I have read a lot on here and there is some fantastic advice, but this is my first post so please be gentle. I am happy to give all details, but at the moment I wanted to give a summary and await questions rather than bore everyone with details that may or may not be relevant.

Myself and neighbours back on to a parcel of grazing land which has been in existance since the 1840's, our house's were built in the 1850's. The paddock was very recently granted planning permission for a small number of houses, after which point earlier this year the developer began to clear the site. This has resulted in exposing our rear fence lines / boundaries in being not100% in a straight line, (which the title plan is) there are 5 households in total. The fence line goes in and out slightly. Until the clearing of the site there were in places shrubs and trees 3-5m thick, so the fences were not all visible, plus we all have trees and shrubs at the bottom of the gardens too. So it was not obvious at all.

In April the developer sent us all a letter with our titles saying the fence was wrong and we had encroached, offering to move our fences for us by "up to 2m". We declined this offer for 2 reasons. a) - at no point has the developer actually showed us any evidence that the fence line is wrong, and not by 2m. and b) - between us we have summer houses and decking etc against this boundary costing thousands of pounds. Moreover these fences have been in place for decades.

Roll on 2 weeks to May and I received a letter this week stating my fence line is in the wrong place and it needs to be moved by 1-2m, otherwise they would start legal proceedings. Also that they deny my adverse possesion claim as I have provided no evidence. Nobody else received a letter even though we had wrote a joint letter previously. Again the developer sent my title and nothing else. He also sent planning permission for a summer house from the previous owner showing it 5m to the fence. We measured and its 4.27m? But again not showing any other evidence of why it is wrong. I have not yet applied for adverse possesion as I do not know that the boundary is in the wrong place.

What I can say is that the fence on this boundary is decades old, it was clearly put up to hold livestock as its a barbed wire / mesh fence with wooden posts. The wire is rusty and the fence posts are rotten and falling down. I have only lived here for 5 years and have not moved the fence. I have contacted the previous owner who moved in 2005 and he has confirmed the fence was there then. The neighbours can vouch for this too, one of whom lived here for 20 years. I have also spoken to someone else who lived here from 1975 and confirms it so I am building up evidence if indeed adverse possesion is required.

I do have a scaled map from a 1962 conveyance which I have rudimentally checked the measurements and its appears the boundary is in the correct place. However I am aware these are often as inaccurate as title maps when it comes to defining boundary locations.

So I have 2 questions for starters.
Q1. The developer is not yet the land owner, can he or his solicitor start legal proceedings against me. Or should this be the current land owner of that title.
Q2. I understand the title only shows the general boundary and being a rural location its from OS maps 1:2500 scaled to 1:1250, meaning it could be +/- 1.8m, so should I be receiving some other evidence from the developer before I start looking for a property lawyer?

Thanks so much for reading and offering any advice.
span
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Re: Developer Claiming Boundary is Incorrect

Post by span »

Sounds like you've already got a pretty fair grasp on the situation.

Maybe bone up on "slander of title" for awareness and as an extra arrow in your quiver if things become desperate enough for you.
70sThrowback
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Re: Developer Claiming Boundary is Incorrect

Post by 70sThrowback »

Thanks Span. I have done a lot of reading! I am hoping the developer is going to drop it but somehow doubt it. I think mainly because they have the access road to the houses along our boundary.

In terms of the questions. Do you have any opinion of whether the developer not being the land owner can start a legal dispute?

Thanks again
IdefixUK
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Re: Developer Claiming Boundary is Incorrect

Post by IdefixUK »

Hello 70sThrowback.
"In terms of the questions. Do you have any opinion of whether the developer not being the land owner can start a legal dispute?"

It's beyond my pay-grade but take a good look on the Bailii website for Walker & Anor v Burton & Anor [2103] EWCA Civ 1228 (14 October 2013)
Look at paras 16 and 31. I don't know if this can be applied to your situation.

Regards.
Collaborate
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Re: Developer Claiming Boundary is Incorrect

Post by Collaborate »

They probably have an option to purchase, which means they have an interest in the land. I suspect that means they have sufficient standing to take proceedings. Wait until you get a proper letter before action and then take it to your legal expenses insurer. Make sure they allocate you a proper solicitor rather than a law student paralegal.
ukmicky
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Re: Developer Claiming Boundary is Incorrect

Post by ukmicky »

As you said you have a general boundary so it dosent really matter where the deeds place the fence line.

Failing that if is not registered you and the previous owners years of possession is enough to gain it.

If it is registered you can still gain it under new rules (LRA 2002)using the special clause

Clause 3

The applicant has been in adverse possession of land adjacent to their own for at least 10 years under the mistaken but reasonable belief that they are the owner of it.
Any information provided is not legal advice and you are advised to gain a professional opinion
arborlad
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Re: Developer Claiming Boundary is Incorrect

Post by arborlad »

70sThrowback wrote: Wed May 13, 2020 4:08 pm Moreover these fences have been in place for decades.



You saw what you bought and bought what you saw, as did your other four neighbours and indeed the current owner of the paddock depending on when he became owner, the physical evidence is overwhelmingly in your favour in this matter. If the developer believes there are any errors or omissions in his potential purchase, he should take up with the vendor, but, there is nothing either of them can do, the solicitors letters are just the normal scare tactics they all seem to resort to in these situations.

I think it would be wise for you and your neighbours to act jointly in this matter.
arborlad

smile...it confuses people
70sThrowback
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Re: Developer Claiming Boundary is Incorrect

Post by 70sThrowback »

Hi all,

thanks for the reply so far. The developer does have an interest pending purchase, coincidentally I got a LR alert "To protect a pending: Purchase" on that title the day he posted the threatening letter. The land was registered in 2016, so it is regsistered, with the title plan based on the OS map of the time.

In terms of viewing the land beforehand and therefore the boundary, completely agree its our view he hasn't done the due diligence and had a proper togographical survery done before submitting his plans. The site was covered in trees and very overgrown in parts meaning nobody could see the full length of the boundary. In fact we were there the first day he saw it cleared, as we had agreed to meet to discuss planting plans. Our hope was to influence this to provide us with more privacy. He commented it wasn't what he was expecting, the fences weren't straight and started talking with his colleague about moving fences. I actually said to him, no and it would lead to a boundary dispute. Perhaps not wise given where we are now!

The intention was as neighbours to fight this together, our first reply letter to him was joint one (After he had written individually to us telling us our fences needed moving by up to 2m). The problem is I am the only one he has replied to since that joint letter and threatened legal action. I am guessing this is because in his approved plans he has a 3.5m border next to his road further up along the other neighbours, which narrows to 1m at my boundary for a turning circle.

In terms of evidence and adverse possesion, I am still not sure this is needed because I am positive its within the general boundary tolerance. That said I have managed to track down the previous owners and they confirmed the fence was there in the same position in 1975 when they moved in and are putting this in writing. So I think I have everything I need to fight it, I am now waiting for the legal letter I guess.

Again thanks for all the advice.
ukmicky
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Re: Developer Claiming Boundary is Incorrect

Post by ukmicky »

70sThrowback wrote: Thu May 14, 2020 9:30 am Hi all,

thanks for the reply so far. The developer does have an interest pending purchase, coincidentally I got a LR alert "To protect a pending: Purchase" on that title the day he posted the threatening letter. The land was registered in 2016, so it is regsistered, with the title plan based on the OS map of the time.

In terms of viewing the land beforehand and therefore the boundary, completely agree its our view he hasn't done the due diligence and had a proper togographical survery done before submitting his plans. The site was covered in trees and very overgrown in parts meaning nobody could see the full length of the boundary. In fact we were there the first day he saw it cleared, as we had agreed to meet to discuss planting plans. Our hope was to influence this to provide us with more privacy. He commented it wasn't what he was expecting, the fences weren't straight and started talking with his colleague about moving fences. I actually said to him, no and it would lead to a boundary dispute. Perhaps not wise given where we are now!

The intention was as neighbours to fight this together, our first reply letter to him was joint one (After he had written individually to us telling us our fences needed moving by up to 2m). The problem is I am the only one he has replied to since that joint letter and threatened legal action. I am guessing this is because in his approved plans he has a 3.5m border next to his road further up along the other neighbours, which narrows to 1m at my boundary for a turning circle.

In terms of evidence and adverse possesion, I am still not sure this is needed because I am positive its within the general boundary tolerance. That said I have managed to track down the previous owners and they confirmed the fence was there in the same position in 1975 when they moved in and are putting this in writing. So I think I have everything I need to fight it, I am now waiting for the legal letter I guess.

Again thanks for all the advice.
They need to do a statement of truth .google it so you know what is involved.

Also take photos and be wary as it has been know for developers to turn up one day and take fences down.
Any information provided is not legal advice and you are advised to gain a professional opinion
IdefixUK
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Re: Developer Claiming Boundary is Incorrect

Post by IdefixUK »

Just to let the OP know that they must now use the "new" style of wording in a statement of truth. This was changed 1st April this year.

Regards
70sThrowback
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Re: Developer Claiming Boundary is Incorrect

Post by 70sThrowback »

Thanks ukmicky and IdefixUK I will google statement of truth. So far I have letters from previous owners and neighbours now dating back to 1971 stating the fence line is in the same position. When I receive the letter from the solicitor I will advise them of this but I will not be providing them. They are all more than happy to help, so if I need them at this point to change the letter to a statement of truth I am sure they will do this.

I have taken dozens of photos of the fence and even 3 videos with close ups as I have the same fear that they could take it down. So definitely ticked that box.

Thanks again for all the advice.
arborlad
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Re: Developer Claiming Boundary is Incorrect

Post by arborlad »

This may help:
arborlad wrote: Sun Aug 26, 2018 11:28 am
arborlad wrote: Thu Jul 13, 2017 1:24 pm This is what Conveyancer had to say in a situation similar to yours:

Note especially No.6:



Conveyancer wrote:Write back and say:

Dear Sir,

[Insert heading describing property]

Thank you for your letter of...

1. The land in question is entirely within my title as registered at HM Land Registry, as you will discover if you take the trouble to obtain office copy entries.

2. I have been in undisputed possession of the land for twenty years.

3. A legal title guaranteed by the state coupled with long term de facto possession gives me an indefeasible right to the land.

4. Your reference to aggravated and exemplary damages is made solely to frighten me into conceding some land.

5. Should proceedings be instituted they will be defended vigorously and the court asked to award costs on a full indemnity basis on the grounds that the claim is wholly without merit.

6. It cannot be coincidental that this entirely spurious claim comes at a time when your client wishes to construct an extension for which he has insufficient space.

7. If either you or your client persist in maintaining that I do not have title to the land I shall have no option but to begin proceedings for slander of title.

8. I shall not engage in any further correspondence in this matter.

I remain your obedient servant,

arborlad

smile...it confuses people
Collaborate
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Re: Developer Claiming Boundary is Incorrect

Post by Collaborate »

Beware relying on a template letter that is 12 years old.

The reference to 20 years was fine at the time, but will not help you now. You need to show 12 years occupation prior to 2002. That means you need to prove over 30 years occupation to get adverse possession using the old system.

Not that your case relies on adverse possession, but it is another nail in their coffin so you need to get it right from the start.
70sThrowback
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Re: Developer Claiming Boundary is Incorrect

Post by 70sThrowback »

Thanks Collaborate / Arborlad

I am lucky in that previous owners are still local. The owners from the 1970's actually came round yesterday to visit and confirmed everything is as it was in terms of location when they moved in. Also the actual physical fence is still the same!

I agree I still don't know whether this is adverse possesion or not. To me 1-2m is within the tolerance of inaccuracy of the LR title plan being scaled from 1:2500. But its comforting to know that I am covered anyway.

I have to admit I have had a few sleepless nights over this, but its comforting to receive feedback I have a strong case.
SwitchRich
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Re: Developer Claiming Boundary is Incorrect

Post by SwitchRich »

This is what makes Garden Law great! :)
Please do keep the forum updated as its really nice to hear a story concluded. And if you think relevant post some pictures of your title plan and the development site if possible.
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