Right of Way/Adverse Possession Dilemma

jad8298
Posts: 33
Joined: Mon Jul 13, 2020 7:17 pm

Right of Way/Adverse Possession Dilemma

Post by jad8298 »

Hi There,
I'm hoping someone can kindly help as the information I have received elsewhere is totally contradictory & we are so very confused.
We have lived in our property for 25 years. In the past couple of weeks we have learned that 1/4 of next doors kitchen and 1/2 of their conservatory is on our land.
We do not dispute the kitchen as our solicitor many years ago said this was not a problem.
We are becoming aware that as the neighbours have occupied the conservatory for 23 years they would no doubt be able to claim adverse possession quite easily. Even though we had no idea it was on our land until just this month.
However, there is no way we could have ever stopped the neighbours building their conservatory as there was a part of a building on this land when we moved in to our property.
By looking at the property from photos up until present day, we are certain they have built on a right of way. The kitchen door of the neighbouring property steps directly onto our land and they have to use this/what is our land to reach their own garden.
We never could have stopped anyone occupying this property or they would essentially would have a back door to nowhere.
They still have to cross our land to reach their own garden, albeit a conservatory now stands on this piece of land they have to cross.
Although there is nothing in our deeds etc that mentions a right of way, it is very evident to see.
From the advice we have found online it says adverse possession cannot be claimed on a right of way.
We are thinking this 'implied'? right of way has existed for over 60 years.
Does this make sense to anyone?
It seems unfair that as the neighbours built their conservatory, they should have checked what they were building on?
We never gave nor denied permission for the conservatory. As stated above this would have been impossible as we would have then been sealing them in their own kitchen!
Hope you can possibly help?
Thank you so much
cleo5
Posts: 452
Joined: Mon May 18, 2015 12:33 pm

Re: Right of Way/Adverse Possession Dilemma

Post by cleo5 »

Oh dear, you are in a difficult situation and I feel for you.

Firstly are you able to post a plan of your property and neighbours on here.?

Secondly what is marked as your boundaries on your title plan?
How did you find out they had built on what seems to be your land.?

Is any right of way marked on yours or their title deeds. You can obtain a copy of this from the Land Registry.

How could your solicitor say that it wasn't a problem.
It might well be if you choose to sell.

If the fact that they have built on your land doesn't bother you too much since you have lived with it for some time then it only really matters when you try and sell.

Who owned the part of a building that you say was on the land when youmoved in?
Have you spoken to the neighbour about this yet.?
Sorry for all the questions but it will help folk on here to get a clearer picture.
Surely you knew the extent of your boundaries when you signed your conveyance?
I hope you get help to resolve this situation.
MacadamB53
Posts: 7231
Joined: Sun Dec 09, 2012 11:13 pm
Number of Posts per Page: 100
Number of topics per page: 50

Re: Right of Way/Adverse Possession Dilemma

Post by MacadamB53 »

Hi jad8298,

can we please see a plan to understand the layout?

kind regards, Mac
jad8298
Posts: 33
Joined: Mon Jul 13, 2020 7:17 pm

Re: Right of Way/Adverse Possession Dilemma

Post by jad8298 »

Thank you so very much for your kind reply, you don't know how much I appreciate.
I also thank you for the questions you've asked and I will try to answer each one.
We have only found out as our daughter was in the process of buying next door and when it came to her checking the boundaries she noticed what she thought was a mistake. Her solicitor confirmed it wasn't a mistake and it is on our land.
Unfortunately, before my daughter received her surveyor report the neighbour advised they had received the full asking price offer, so my daughter had no choice other than to back out as the surveyor advised of quite a few problems & she didn't have his report to work with.
There is no right of way marked on our deeds. The neighbours deeds mentions a septic tank that we and the other neighbouring properties are responsible for. However, this is not mentioned on our deeds. The septic tank is no longer in use and we don't think the neighbours are even aware of where it is located. We are unsure if there would have been a right of way to this septic tank.
It seems inconceivable that we have allowed someone to build on our land without knowing/objection. Our solicitor told us and we have in writing it is not a shared garden. We were always aware of the kitchen as he said things were higgledy piggledy in the country and it wasn't a problem.
The neighbours wish us to say it has been a mistake and just agree to move the lines. Whilst it may appear after 20 years that the conservatory hasn't bothered us this is untrue.
When the neighbours built it, we felt like it was very imposing but did not for one second believe we could have objected. Although never believing this land was ours is now no excuse, it is only since finding out it is our land have we have questioned how could we not have known.
Hopefully the attached will show how we could not have stopped any occupier of the next door house from using this land, even if we had been fully aware of the boundaries.....it is telling me it is too large no matter how small I make so will try to upload separately......

To stop them we would have been sealing them in their kitchen with no escape. The only way they could every reach their own garden was by using what we now realise is ours. This is why we are wondering it surely must have been a right of way for them?
I tried to seek the advice of an online solicitor who believed we were walking through the neighbours kitchen and conservatory for 20 years without them knowing lol. We have laughed but also cried & argued as a family with this situation & we haven't done anything wrong.
I know many people will say that we should have checked our boundaries and after this length of time the neighbour would be granted possession etc. However, surely if this was/still is a right of way the onus should also fall on the neighbour for not thoroughly checking their boundaries/possible right of ways also?
I keep on finding that adverse possession cannot be granted on a right of way and wonder if this is true?
Our garden has never been private before/after conservatory. We can't even put a fence up as they wouldn't be able to open or clean their conservatory windows which opens even more onto our garden.
Thank you & sorry for the rant.
jad8298
Posts: 33
Joined: Mon Jul 13, 2020 7:17 pm

Re: Right of Way/Adverse Possession Dilemma

Post by jad8298 »

Please find plan/details attached.
You do not have the required permissions to view the files attached to this post.
jad8298
Posts: 33
Joined: Mon Jul 13, 2020 7:17 pm

Re: Right of Way/Adverse Possession Dilemma

Post by jad8298 »

Apologies, I also meant to show that we had a conservatory before the neighbouring property & as you will see it would be impossible to put a new fence in place for privacy into our garden as it would block their windows. I also forgot to include the other half of the neighbours conservatory which is on their land.
You do not have the required permissions to view the files attached to this post.
cleo5
Posts: 452
Joined: Mon May 18, 2015 12:33 pm

Re: Right of Way/Adverse Possession Dilemma

Post by cleo5 »

The plan is a great help.
You have been very tolerant of all this.
Another would have complained much more about this intrusion of an overlarge conservatory.

If your daughter could still buy this property then it would be simple

You can give her that odd strip of land by gift of deed, get boundries changed on condition the conservatory is removed And a small replacement built.
It is easily done and wont cost much.
So i hope that the person who has offered full price will fail in purchase and your daughter can then buy it.



You can also get a copy of old planning approvals/ refusals from your local planning office.
These cost £5 per copy .
Why don't planning departments check ownership of land before giving planning approval??

You need a solicitor who really knows what steps you can take to remedy the situation if a stranger buys next door.
Some are more knowledgeable on property law than others.
The neighbours have to apply for adverse possession and you can then object strongly.
Again a solicitor who is skilled in ad poss issues will advise.
cleo5
Posts: 452
Joined: Mon May 18, 2015 12:33 pm

Re: Right of Way/Adverse Possession Dilemma

Post by cleo5 »

Ps.
It isn't your fault. In times gone by neighbours were tolerant and giving.
Now they do what they do what they want regardless....and the law allows it.

How you co uld bear that dreadfully intrusive conservatory for so shows your tolerance

Forgot to say old planning is called" historical planning".bythe planning dept of local couuncil.
I found it helpful .
You did not give permission at any time for this use of your land. They did not ask. It wasnot unregistered or derelict land but your garden so therefore I think any
Ad Poss application would be refused. You can object if it should come to this.
Do not worry or argue. There are resolutions to all kinds of situations.
Do you have legal fees cover on yourhome insurance insurance?
stufe35
Posts: 968
Joined: Mon Nov 05, 2012 3:06 pm

Re: Right of Way/Adverse Possession Dilemma

Post by stufe35 »

I think you are in a prime position to bring this issue to light and tell your neighbours and their potential buyers that there are some major issues which need resolving. I suspect their buyers will run a mile/ say it has to be all sorted. Your neighbours may need to agree to pay all your costs in sorting out the boundaries (it is them that has a problem to facilitate the sale as when potential purchasers solicitor/mortgage provider becomes aware its going to be a show stopper. You are i believe in a prime position to scuper their sale and get your daughter back in the frame.
Morgan Sweet
Posts: 360
Joined: Sat Jan 03, 2015 7:47 pm

Re: Right of Way/Adverse Possession Dilemma

Post by Morgan Sweet »

I do sympathise with you in this predicament. The planning departments, when granting permission, do not check if you own the land or not; however I would have expected them to contact you for your comments if pp had been applied for. The fact that you did not give permission for your neighbours to occupy the land would most probably count against you in an adverse possession claim and you may well be unsuccessful in defending an AP claim. Therefore you urgently need to contact a solicitor experienced in or specialising in property law to consider your best options in defending or mitigating the unfortunate situation . You still have the ownership of the land shown on your LR title plans and it would be for your present or future neighbours to claim possession. I think that this would cause most buyers to re-negotiate their offer if the encroachment comes to their notice if they check the boundaries against the LR title plans. I do hope that this all can be resolved by mutual mediation that should be entrusted to an appropriate solicitor.
Collaborate
Posts: 2191
Joined: Mon Feb 23, 2015 9:17 am
Number of Posts per Page: 20
Number of topics per page: 20

Re: Right of Way/Adverse Possession Dilemma

Post by Collaborate »

cleo5 wrote: Wed Jul 15, 2020 9:05 am Ps.
It isn't your fault. In times gone by neighbours were tolerant and giving.
Now they do what they do what they want regardless....and the law allows it.

How you co uld bear that dreadfully intrusive conservatory for so shows your tolerance

Forgot to say old planning is called" historical planning".bythe planning dept of local couuncil.
I found it helpful .
You did not give permission at any time for this use of your land. They did not ask. It wasnot unregistered or derelict land but your garden so therefore I think any
Ad Poss application would be refused.
You can object if it should come to this.
Do not worry or argue. There are resolutions to all kinds of situations.
Do you have legal fees cover on yourhome insurance insurance?
You have literally (the bit in bold type) set out one of the essential things needed for an adverse possession claim to be successful.
jad8298
Posts: 33
Joined: Mon Jul 13, 2020 7:17 pm

Re: Right of Way/Adverse Possession Dilemma

Post by jad8298 »

Thank you to each and everyone of you for taking your time in trying to help.
Our daughter really wanted the property and whilst she would still be interested, the surveyor report is probably more concerning than the boundary issue.
Now the neighbours have accepted a higher offer and it was my daughter who spotted the problem, we tend to think they wouldn't even sell to her out if they have any bad feeling about her bringing it to light. Before this issue the vendors said they could not reduce anymore regardless of survey. So whilst it would be a possibility, it is looking unlikely.
Apart from the first solicitor who thought we were in their property a 2nd solicitor has said it would be £800.00 just to review & advise!
We have contacted a 3rd one to compare the costs involved.

Collaborate, I agree with you in what you have pointed out in bold

However this is what I am trying to say......

According to online, what we keep coming up with is adverse possession cannot be adverse if permission was given.
Whilst we personally didn't give permission, someone in the past must have given permission for them to use this land to then access their own, therefore creating a right of way and giving the property permission. Even though this was not us permission has been granted at some point?
MacadamB53
Posts: 7231
Joined: Sun Dec 09, 2012 11:13 pm
Number of Posts per Page: 100
Number of topics per page: 50

Re: Right of Way/Adverse Possession Dilemma

Post by MacadamB53 »

Hi jad8298,

someone in the past must have given permission

sorry, but it doesn’t work like that - you need evidence.

all the best, Mac
Collaborate
Posts: 2191
Joined: Mon Feb 23, 2015 9:17 am
Number of Posts per Page: 20
Number of topics per page: 20

Re: Right of Way/Adverse Possession Dilemma

Post by Collaborate »

I agree that it is quite likely that a predecessor in title "gave permission" - in the sense that it's impossible to miss someone building first an extension and second a conservatory in your back garden. Either they sat back and said nothing, objected but did nothing about it, or wished them well in their build. Unfortunately building something on someone else's land that is only accessible from one side tends not to fit neatly in to the test of whether permission was granted. With someone walking over your land you can always withdraw permission.

With someone building on your land the old established equitable doctrine of propitiatory estoppel will come in to play, which will prevent the garden's owner from asserting their rights over the land now built on. So this is not a case of adverse possession or ROW so much as by what method can the extension/conservatory owner establish an interest in land on which those buildings stand. The answer is propitiatory estoppel.
Morgan Sweet
Posts: 360
Joined: Sat Jan 03, 2015 7:47 pm

Re: Right of Way/Adverse Possession Dilemma

Post by Morgan Sweet »

If your neighbour has now been made aware of the boundary discrepancy they legally should reveal this to a prospective purchaser when completing the home buyer information document. If so, most solicitors would advise that the new buyer asks for this to be resolved as a condition of completing the purchase. You could also write to your neighbour informing them of the encroachment but this would also have to be disclosed if you choose to sell your property in the future. The encroachment appears so blatant when examining the LR title plan that it is most likely that any purchaser of either property would notice it. When you come to sell and if it does not bother you, you could transfer the encroached upon land to, say your daughter, and sell your property with this area removed from your LR title plan at very little cost. This would resolve it for you (notwithstanding that you have lost the area involved) however your neighbour or their buyer has still to resolve the encroachment if they wish their property to be reflected on their LR title plan. I know (literally) to my cost that solicitors charge a great amount, I paid £250 plus VAT per hour to regain land shown on my LR title plan but I was fortunate in noticing the encroachment just before the 10 year period. Hopefully pilman may read your predicament and be able to offer you some pragmatic advice.
Post Reply