Right of Way/Adverse Possession Dilemma

MacadamB53
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Re: Right of Way/Adverse Possession Dilemma

Post by MacadamB53 »

Hi Collaborate,

propitiatory estoppel

is that the same as proprietary estoppel? :)

warm regards, Mac
jad8298
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Re: Right of Way/Adverse Possession Dilemma

Post by jad8298 »

Thank you guys,
As much as this sounds like a nightmare to resolve, I do accept that if there is nothing we can do that's just the way it is.
I know nothing of the law but I find it really interesting.
Mac...when you say:
someone in the past must have given permission
sorry, but it doesn’t work like that - you need evidence.

Please can I just ask why 'the law' suggests easements/right of ways don't have to be in the deeds if they can be proven?

When you say you need evidence, Surely it couldn't be any more evident as it's obvious the neighbours still have to step on this land to reach their own. Surely this is evidence within itself?

I recently came across Proprietary estoppel & it was a big word that went pretty much over my head.
In terms of the kitchen I can fully understand, but the conservatory/land it sits on I wonder how Proprietary estoppel would come into play?

As the neighbours deeds show the same plan as ours how would this constitute a promise?

Please excuse my ignorance as I'm trying to decipher as I go if I misunderstand something.

I'm not sure how we could ever withdraw permission from them walking on our land as they would not be able get out of their kitchen. How would we have any right to block someone in. That in itself would beextremely unreasonable. Surely even legally we could not have done this?
Morgan Sweet
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Re: Right of Way/Adverse Possession Dilemma

Post by Morgan Sweet »

I have no legal qualifications whatsoever, however regarding an easement/right of way, I believe that you gain an easement over another's land if you have used the land unchallenged for 20 years.
ukmicky
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Re: Right of Way/Adverse Possession Dilemma

Post by ukmicky »

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.

Even if they had a ROW over your land and they have built on the ROW their current use cannot be compared to any right they may have had through an easement allowing them to pass over the land .

By building on it they have excluded the world and totally fulfilled all the criteria required under adverse possession law. Even though normally you can’t adversely posses land if you have a right to be on it there is no blanket rule that prevents a claim under the right circumstance and I can see an adverse possession claim being accepted here.

The question however is if they were to put in a claim what would happen to the claim . If they claimed under the new rules you get to object and and then are given two years to evict. (Which then creates another issue as you would need an injunction, see Further down)

If any of the buildings have been there long enough to allow them to claim under the old adverse possession laws as they have remained in what they call actual and obvious occupation their unregistered interest would override your Registered deposition preventing you from evicting them and getting the land back.

It’s not a Propriety estoppel as they would have needed a clear assurance from the landowner that they could reasonably rely on that they would acquire a right over the land .However even without a proprietary estoppel being established a court does not have to grant an injunction and can order damages to be paid in lieu of an injunction instead ,allowing the building to remain.

See the appeal court case RASHID & ANOR V SHARIF & ANOR
Any information provided is not legal advice and you are advised to gain a professional opinion
alyson
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Re: Right of Way/Adverse Possession Dilemma

Post by alyson »

[quote=jad8298 post_id=217379 time=1594834393 user_id=29325
I'm not sure how we could ever withdraw permission from them walking on our land as they would not be able get out of their kitchen. How would we have any right to block someone in. That in itself would beextremely unreasonable. Surely even legally we could not have done this?
[/quote]

So they ‘stole’ your land to build on and you feel it would be unreasonable to deny them further trespass because they put their kitchen door in a position which means they can’t use it lawfully??????????/
Collaborate
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Re: Right of Way/Adverse Possession Dilemma

Post by Collaborate »

You can find the definition of proprietary estoppel in the case of QvQ [2009] 1 FLR 935:
'If A, under an expectation created or encouraged by B that A shall have a certain interest in land thereafter, on the faith of such expectation and with the knowledge of B and without objection from him, acts to his detriment in connection with such land, a Court of Equity will compel B to give effect to such expectation.'

[106] It is not necessary for B to make a promise (by which I intend to signify, in a rather inaccurate one word shorthand, a whole range of conduct by B which might found a claim in proprietary estoppel) which is expressed to be irrevocable. It is the fact that A relies on the promise, to A's detriment, that makes it irrevocable, Taylor Fashions Ltd v Liverpool Victoria Trustee Co Ltd.
At some point the owner of your property presumably lead the owner next door to believe that they can extend their house on to your land. I imagine that wouldn't be too difficult to prove. That would come with ancillary rights, by which I am referring to the doorway and use of it.

Certain posters on this thread have been seduced by the fact that you originally thought this an issue relating to a right of way. It is not.
cleo5
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Re: Right of Way/Adverse Possession Dilemma

Post by cleo5 »

Did you ever complain to the neighbours about the size of the conservatory when it was being built.?
Did they take your silence for permission I wonder?

Did they know at the time it was your land they were building on.?

Why is the kitchen door access your side. They can easily get the present door blocked up and put in a door facing their own land or into another romm of their house which has access to their garden.

You will get a letter from Land Registry if they try to claim adverse posession of your land and you can then fight it so do not worry just yet.

You could telephone the RICS. Google for info.( Royal Institution of Chartred Surveyors).
They will put you in touch with a solicitor nearest to you , who deals with encroachment,and you gt a free half hour or more of telephone advice..

I found this service immensely helpful when faced with an attempt at AP of my land.
It really woould be best if your daughter could buy this property . You could sort out things more easily then. This would be the right way for the neighbour to go because any prospective buyer is not going to willingly put himself into a situation like this.
It is one thing to make an offer for a property but another to carry on the purchase fraught with problems.
Does theneighbour now know the situation?
mr rusty
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Re: Right of Way/Adverse Possession Dilemma

Post by mr rusty »

Why not just cut to the chase. The bottom line is that you are not too bothered about the construction, but would like to use the situation as leverage to get your daughter in to the house at the right price.

Why not just front it up. Write to the neighbour making it very clear there is a boundary dispute that needs resolving, and they have a legal duty to tell their purchasers. If they don't you will tell them after the event and then they would likely be on the peg for damages for witholding relevant information. At the same time, say to the neighbours that your daughter buying the house makes the problem go away for a fast transaction. Separately you can negotiate the outcome of the survey.

Be blunt - say to the neighbour this is a potential show stopping difficulty for their sale. They can either be pragmatic and get a quick sale, or they can let the matter stand, but you don't have any particular rush to resolve the situation yourself, and things can then take their course, which might take a couple of years. It will depend what value the neighbours put on staying put for a couple of years...
jad8298
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Re: Right of Way/Adverse Possession Dilemma

Post by jad8298 »

Once again,
Many thanks for all your suggestions. I have contacted rics today.
I do agree with the ancillary rights for the door but this is not the issue. It is that the current neighbours have extended way beyond the kitchen and still the only way the could reach their own land is by using our garden. Not just the door.
Our mains water pipe is under their conservatory. We are responsible for that pipe and have had many problems. We were told at some point it will need rerouting which is very expensive.
It is also showing an easement on the neighbours deeds which state we and the neighbouring properties are responsible for a septic tank that we have never been aware of.
We have mains sewerage so have no idea where this is located and only hope this is not under the conservatory.
Surely this also shows also there was also another right of way to use/access this tank.
Our daughter really did want the property, boundary issue aside their surveyor has flagged serious problems which means they cannot proceed.
We only ever complained to ourselves. We had no idea we owned the land to ever complain.
Thanks so much again
mr rusty
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Re: Right of Way/Adverse Possession Dilemma

Post by mr rusty »

If your daughter is genuinely interested in purchasing, then I think you need to get the neighbours to see what a golden opportunity this is for them to offload a difficult problem. Anyone other than your daughter or a cash buyer is going to crash straight in to this boundary dispute and the discrepancies on the registers, and until it is resolved it is highly unlikely, IMHO, than ANY purchaser will be able to get a mortgage on the neighbours property. You say the surveyors report has flagged problems. This is a separate issue to the boundary dispute and should be negotiated separately as a price reduction (unless the property price is already discounted to reflect). Again ANY buyer is going to hit the same hurdle. - What has the surveyor flagged?

I think all the conversation around ROW, easements etc. is just a diversion. The big issue is the property on the ground does not match the registered plans.
jad8298
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Re: Right of Way/Adverse Possession Dilemma

Post by jad8298 »

the surveyor flagged that is riddled with damp, heating system needs updating, a diy botched extension, water coming in from roof, the back wall is leaning so possible foundation issues etc.
My daughter would have like to have got people out to take a look but the neighbour said they received full asking price offer and would not wait for the full survey report.
The surveyor estimated it worth at least £20,000 less. The vendor did not give our daughter any time to look into the issues addressed. They are first time buyers and did not expect all these issues, especially on the price they offered.
I understand when you say the big issue is the property on the ground does not match the registered plans.
We are simply trying to find out is if we have any rights to object. Yes they tick all the boxes for adverse possession apart from us being told you can't claim adverse possession on a ROW.
Surely the neighbours should have checked what/where they were building their conservatory and now they want us just to agree to move the lines.
Morgan Sweet
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Re: Right of Way/Adverse Possession Dilemma

Post by Morgan Sweet »

I think that Mr Rusty makes sense. Off course your neighbours should have checked their LR title plan before building on the land and surely cannot expect you to just give the land to them now that they want to sell. It will have to be sorted out at some stage, they can try Adverse Possession and may well be successful or offer to buy the land from you if that is agreeable to you. The fact remains the LR title plan shows that you are the legal owner of the land in question and it is up to the neighbours to resolve the issue, unless they can find someone to buy it with the encroachment. Personally I would just sit tight but express your daughter's interest in the property. It may well be expedient to officially write to them telling them that they have encroached but check first with a solicitor for their advice. When the neighbours' realise that they most likely have to resolve the issue before they can sell they may be more willing to negotiate a solution that may benefit you and your daughter.
mr rusty
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Re: Right of Way/Adverse Possession Dilemma

Post by mr rusty »

if we have any rights to object. Yes they tick all the boxes for adverse possession
I think possibly you are missing the point that your biggest stick is not the right to object, but the ability to move very, very slowly in the process to correct the error. There is a process that would have to be gone through for them to claim adverse possession , and if you just go slowly at every stage - take time to respond to communications, take every opportunity to extend the process, you could drag this out for a very long time. If your neighbours wish to move, THIS is what they need to understand - there is nothing for you to gain by being fast and efficient.

from the gov website. - this is the bit you need to draw their attention to...
if the application is opposed, it will be rejected unless either
it would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the squatter and the squatter ought in the circumstances to be registered as proprietor.
the squatter is for some other reason entitled to be registered as proprietor.
the squatter has been in adverse possession of land adjacent to their own under the mistaken but reasonable belief that they are the owner of it, the exact line of the boundary with this adjacent land has not been determined and the estate to which the application relates was registered more than a year prior to the date of the application.
in the event that the application is rejected but the squatter remains in adverse possession for a further 2 years, they will then be able, subject to certain exceptions, to reapply to be registered as proprietor and this time will be so registered whether or not anyone opposes the application
whether or not the 2 year period would or would not actually be brought in to effect, I suspect that even the fear of it being imposed might be enough to concentrate minds. In this sort of negotiation, the perception can be as important as the actuality
pilman
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Re: Right of Way/Adverse Possession Dilemma

Post by pilman »

It has not been mentioned so far in the replies to this posting that the red line drawn on a title plan is where the Land Registry have shown the general boundary position.

It may be the case that each property has erected the buildings on land that is part of their legal estate, since it seems unrealistic to think that someone built on the neighbour's land 20 years ago and nothing has been done about it since that date.

It may the situation where the original paper deeds have to be looked at to establish whether the land was divided in a way that the current owners have failed to realise.

The fact that one owner thinks the other owner has to cross over their land to access the garden associated with the next door house does raise a possibility that the Land Registry plan is not correct, because the earlier owners had a more detailed plan included when the properties were sold off many years ago when registration was not compulsory.
jad8298
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Re: Right of Way/Adverse Possession Dilemma

Post by jad8298 »

Absoloutely, we understand fully that the boundaries can be shown incorrectly.
What doesn't make sense is moving the boundary would mean we would then lose part of our house and garden.

The hedgerow which was in place when we moved in and which can be seen from photos from the 1920's is still in the same place. If this is followed it runs in line with our chinmney and house.
Hopefully my attempted drawing will show what I mean.

The part where I have put arrows, is the part I am trying to say must have been a right of way for the neighbours.

The section with the arrows is where the neighbours have put their conservatory.
Hope this will help try and explain.
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