Adverse possession or easement?

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patj
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Adverse possession or easement?

Post by patj » Mon Jun 25, 2012 4:20 pm

We bought a small business three years ago which has been running unchanged for twenty–five years. A critical part of the business occupies a small section of neighbouring land which we don’t own, but has done so openly and without permission and without any payment throughout the twenty five years, and it shows up on aerial photographs.

New owners of that plot of land have now put obstacles in our way, but it’s made it such a struggle that we want to investigate if we can claim the land as an adverse possession or as an easement.

We think the new owners will fight so we don’t know if an ordinary conveyancing solicitor will be able to handle it, or if we should find a specialist who knows what, if any, court procedures we might get caught up in.

Do specialists exist, and how would we find one? Are you allowed to make a recommendation?

withreason
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Re: Adverse possession or easement?

Post by withreason » Mon Jun 25, 2012 5:20 pm

patj wrote:We bought a small business three years ago which has been running unchanged for twenty–five years. A critical part of the business occupies a small section of neighbouring land which we don’t own, but has done so openly and without permission and without any payment throughout the twenty five years, and it shows up on aerial photographs.

New owners of that plot of land have now put obstacles in our way, but it’s made it such a struggle that we want to investigate if we can claim the land as an adverse possession or as an easement.

We think the new owners will fight so we don’t know if an ordinary conveyancing solicitor will be able to handle it, or if we should find a specialist who knows what, if any, court procedures we might get caught up in.

Do specialists exist, and how would we find one? Are you allowed to make a recommendation?
There are solicitors who specialise in land law, search on the Law Society website for your area then check out those in particular who have a website, and preferably a large number of solicitors etc. The better companies will have a section introducing their 'team' and give the expertise of each.

http://www.lawsociety.org.uk/choosingan ... icitor.law

I wouldn't be too concerned with the Lecxel accreditation, these things are usually something a company applies for and is no reflection on those who don't have it.

Adverse possession can be claimed after 12 years if the property was unregistered, it doesn't matter if it is now registered. If it was registered the period of possession since 2003 is 10 years, prior to that it was 12 years but it is far more difficult to gain adverse possession of registered land as the paper title holder will be notified and given the opportunity to object. You can use the previous owner's time as occupiers/possessors. The question is, did the adjoining property also use the land in question? If they did, you may be able to try claiming an easement by prescription which requires 20 years use. The rules are on the govt. Land registry site.

http://www.landregistry.gov.uk/professi ... e-guide-62

http://www.landregistry.gov.uk/professi ... ce-guide-4

http://www.landregistry.gov.uk/professi ... ce-guide-5

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Re: Adverse possession or easement?

Post by patj » Tue Jun 26, 2012 8:34 am

Many thanks for the reply. We read the Land Registry links on Adverse Possession and Easements, and also the Pye vs Graham report highlighted by a another member and are rather concerned about one point in particular.

Whereas the previous owner of our business/property truly believed that he owned the land, we know that it is not on our title plan but is on our neighbour's. The new law seems to imply a sort of fairyland where if you believe something it becomes true; i.e. if you genuinely think you own the land you have a right to own the land. We've always believed we had a right to use the land, but where does ownership come into that? As far as we know the owner of the adjoining property did not use that area of land at all.

We followed your link to the Law Society Find a Solicitor, but they don't give 'land' as a speciality. We don't know if an ordinary conveyancing solicitor would be able to handle matters if it turned nasty so want to find someone with previous experience.

Further advice would be appreciated please.

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Re: Adverse possession or easement?

Post by despair » Tue Jun 26, 2012 8:48 am

I would suggest you need a large practice that has a specialist Land Solicitor

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Re: Adverse possession or easement?

Post by withreason » Tue Jun 26, 2012 2:39 pm

patj wrote:We followed your link to the Law Society Find a Solicitor, but they don't give 'land' as a speciality. We don't know if an ordinary conveyancing solicitor would be able to handle matters if it turned nasty so want to find someone with previous experience.
I found a solicitor from that site by checking the websites given, those that didn't have a website I didn't bother with. If the company has say 3 to 6 solicitors, I doubt they will have a specialist. I chose one which didn't have the Lexcel accreditation, they have 28 people on their staff with a wide range of experience. Two of those specialise in disputes and land law, I have already discussed my case with one and am being passed to a partner in the firm who wants to get his teeth into it. He has teeth which I need! So, just because it mentions conveyancing, don't assume a company will not have other solicitors with relevant experience, most solicitor firms will have conveyancers. Check them out, then phone the one you think might be able to do the job and ask if they have anyone who can handle your situation. I was phoned back and gave a brief outline of my situation, they also explain how they proceed and if they don't tell you of their initial charges you should ask. Mine was very reasonable for a first interview, a fixed price which was not time limited, they should also explain how they proceed with costs. Mine explained that they set a cost for which they can do the job for, if it costs more they don't charge more unless it gets to silly money then they would discuss it. I paid £90 inclusive of VAT, that includes their research as they have someone to do the research for them.

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Re: Adverse possession or easement?

Post by patj » Wed Jun 27, 2012 7:00 am

Thank you for the replies withreason and despair.

We're going to have one last shot at talking to the neighbours because this could run us both into a lot of expense. It's very helpful to have been given an idea of how to approach a big firm, an inexpensive initial interview would help us, but do solicitors really give a fixed price overall when they don’t know how the neighbours will react? Reading about neighbours getting caught up in disputes costing hundreds of thousands about leylandii hedges and the like is very worrying.

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Re: Adverse possession or easement?

Post by withreason » Wed Jun 27, 2012 3:17 pm

patj wrote:Thank you for the replies withreason and despair.

We're going to have one last shot at talking to the neighbours because this could run us both into a lot of expense. It's very helpful to have been given an idea of how to approach a big firm, an inexpensive initial interview would help us, but do solicitors really give a fixed price overall when they don’t know how the neighbours will react? Reading about neighbours getting caught up in disputes costing hundreds of thousands about leylandii hedges and the like is very worrying.
I guess a fixed price is a good firm's way of telling you they are capable of sorting out your problem in a professional way via the best route, in other words you are informed that they will not be stringling you along just to make more money out of you.

That, I imagine, would depend on what evidence you are able to provide them with and how they would view your chances of success. In my case, I had done a lot of research and provided all documentation and photos to support my case. This saves them having to ask you all the ins and outs, and asking you to provide photos and documentary evidence, giving them confidence that you are serious and able to show you have a good case.

Although an experienced land lawyer would know the law, or be able to find the points of law, each case will be new to them so certain points may not be instantly obvious, this is where you can point them in the right direction if you have done your own research. I did this, I was listened to, but I told them I only know what I have found through weeks of research and was aware there may be many loopholes which is where the solicitor comes in. I also told them that I was not able to spend thousands going to court, a claim for adverse possession will be made through the Land Registry, and as said, if the land was unregistered and the claim is accepted then the title owner will not be able to object but that does depend on whether you had exclusive use.

Your first step then is to find out when the owner's property was registered. You can download their title deeds from the LR for £4, as you say there are new owners it could be that was the first registration and you will be able to see what else is said on the title register. Registration became compulsory by law upon transfer since 1991, although some areas started registration earlier than this and registration can be done voluntarily but very few people would do this, or are even aware they could but it does give more protection. If you know how long the previous owner of the neighbour's property was there you will have a better idea of the chances of it being registered, that is if they had purchased post 1991 it will definitely have been registered. Then do your sums, if the previous owner of your property had a minimum of 12 years possession prior to reigstration and you followed immediately in their footsteps then you can use their time. An area does not always need to be completely fenced off into your property to claim, some sort of demarcation can be enough. If it was registered you can still claim, but it's more difficult.

You have said the land was not, as far as you know, used by the neighbour. Is it possible to talk to anyone else to find out whether they did use it, maybe the previous owner of your property could tell you, you have already said he believed it was owned by him. If you can get a statement of truth from the previous owner or someone else that would help, you can find out how to do that on the LR site.

I was also petrified at the thought of huge costs, but the only way I was going to find out what I could do in law for certain was to approach a solicitor. I could have tried to apply to the LR for adverse possession myself, but they advise you to use a solicitor which I think is a safer way to go. My case has other issues attached to it so complicating the matter, but the issues seem to be in my favour so if you feel your issues are in your favour the only way you are going to find out what you can do is to use a solicitor. A talk to your neighbour might help, it depends if they are approachable and don't want to start a dispute, you would be one very lucky person if they succumb to your wishes and agree to a legal easement, even luckier if they decided to let you have the land. As I found, trying to talk to the neighbour, even if I was willing to let them have something to avoid a dispute, just made them dig their heels in harder resulting in a very deliberate harassment which will go against them.

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Re: Adverse possession or easement?

Post by patj » Wed Jun 27, 2012 4:24 pm

There's an awful lot in there withreason, and it's going to take a while to go through it point by point. Thank you very much for going to so much trouble, and we're sending you a p.m.

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Re: Adverse possession or easement?

Post by patj » Tue Jul 24, 2012 11:28 am

Is it allowable to ask for a recommendation on this Forum? Our neighbour has taken to ignoring us so we think we’ve got to get a solicitor involved, but we want someone with experience in disputed prescriptive easements. We’ve been given one name and would be very grateful to receive one or two more. We want to make the right choice of solicitor having heard several horror stories.

Please send a pm if you know a suitable solicitor in Gloucestershire, Wiltshire, Oxfordshire, Berkshire or Hampshire.

If recommendations are not allowed, please can you suggest what questions should we ask in order to decide who to instruct?

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Re: Adverse possession or easement?

Post by withreason » Tue Jul 24, 2012 3:40 pm

patj wrote:Is it allowable to ask for a recommendation on this Forum? Our neighbour has taken to ignoring us so we think we’ve got to get a solicitor involved, but we want someone with experience in disputed prescriptive easements. We’ve been given one name and would be very grateful to receive one or two more. We want to make the right choice of solicitor having heard several horror stories.

Please send a pm if you know a suitable solicitor in Gloucestershire, Wiltshire, Oxfordshire, Berkshire or Hampshire.

If recommendations are not allowed, please can you suggest what questions should we ask in order to decide who to instruct?
I think if someone contacts you privately with a recommendation, it is then up to you if you decide to use that recommendation. I see no problem there, what is private, and what you choose to do are surely personal.

Going back to what you previously said,
patj wrote: Whereas the previous owner of our business/property truly believed that he owned the land, we know that it is not on our title plan but is on our neighbour's. The new law seems to imply a sort of fairyland where if you believe something it becomes true; i.e. if you genuinely think you own the land you have a right to own the land. We've always believed we had a right to use the land, but where does ownership come into that? As far as we know the owner of the adjoining property did not use that area of land at all.
This is one of three exceptions which can be used for adverse possession, if you and the previous owner truly believed the land belonged to you and the land was adjacent to yours. However, the rules of adverse possession still have to be complied with and that includes the paper title owner of the land not being aware that the land in question was being used by someone else. If the true owner didn't actually realise it was their land, then I imagine there would be a case that they could not have been aware if they were not aware that it belonged to them, whether they should have known it was their land (it's their responsibility to be aware) in order to make a successful claim is another thing of which I can't be sure about. The law is very bendable, as such a good lawyer will be able to bend it, but if you know what you need to address first before you put your case to a lawyer then you are half way there. What I'm saying is, adverse possession is still a possibility.

You also said:
but do solicitors really give a fixed price overall when they don’t know how the neighbours will react?
Yes they will, as said, the law is bendable, and if you are in the driving seat so to speak you will be better prepared to negotiate the route you wish to take, or the route your solicitor thinks is the best to take. This might be a claim for a prescriptive right, but don't yet kill off the idea of adverse possession as if the land was not used by the paper owner, it surely can't have been needed by them. Land is meant to be used. If your lawyer thinks you have a strong case, and you make them aware that you cannot afford tens of thousands to go to court, they could offer you a no win no fee option with only an initial set up fee.

Have you tried ringing around the lawyers in your area, and asking if they have a lawyer who can handle a case such as yours? I think I was lucky in my first choice, things haven't got off the mark yet but it's looking potentially doable. I prefer not to say too much as I don't want to give anything vital away at this stage, but there is hope so continue to aim for what you want.

You also said:
it shows up on aerial photographs
Print these off and present them to the solicitor.

Also said:
As far as we know the owner of the adjoining property did not use that area of land at all
.

How do you know they didn't use the land, was it fenced off into your property, or was there some sort of markers? Adverse possession doesn't always rely on being fenced, there was a case where there was only a broken line of stones to mark the area. I found a case where a barge gained adverse possession of a river bed!!! :lol:

http://nearlylegal.co.uk/blog/2009/05/a ... river-bed/

You may also find the Zarb case interesting, this was to do with a boundary dispute where the owner did not take sufficient steps to regain the land .. in this case the owner was aware of the use, I guess that would be allowed for a boundary dispute where the principle of adverse possession is used.

http://www.innertemplelibrary.com/categ ... ossession/

This article is from 2003 as the new LRA 2002 was about to be enforced, it outlines the rules for adverse possession.

http://www.lawgazette.co.uk/news/squatt ... th-numbers

The third exception could apply to you..
If any of the people notified opposes the application it will be rejected, unless the adverse possessor comes within one or more of three conditions contained in schedule 6 paragraph 5 - either it would be unconscionable because of an equity of estoppel for the registered proprietor to seek to dispossess the applicant; or the applicant is for some reason entitled to be registered as a proprietor; or in some circumstances, the land is adjacent to land belonging to the applicant. To come within this third category, 'for at least ten years of the period of adverse possession ending on the date of the application, the applicant (or any predecessor in title) [must] reasonably [have] believed the land to which the application relates belonged to him' (paragraph 5(4)(c)). This third ground will not be brought into force for another year, that is until 13 October 2004.
Under this exception the land has also needed to be registered for at least a year before date of application, you would satisfy that.

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Re: Adverse possession or easement?

Post by patj » Wed Jul 25, 2012 6:20 am

Thank you for the reply Withreason, we really appreciate the time you must have put into it. We're going to go through it in detail at the weekend. Can we ask what sort of a case are you caught up in?

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Re: Adverse possession or easement?

Post by patj » Fri Jul 27, 2012 8:54 am

We do hope that the suspension of P.Ms. is not the result of our asking for solicitor recommendations by P.M., we only suggested P.Ms. because we thought naming solicitors on the Forum might be against the rules.

If it is our fault we would like to appologise very sincerely to Garden Law and other members and hope the suspension will be lifted soon.

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Re: Adverse possession or easement?

Post by Mattylad » Fri Jul 27, 2012 10:40 am

I doubt the suspension is because of your request. Although I am keen to find out why myself.

That leaves only email or public post. If you have the setting to allow other members to email you, however I am not sure if it is done anonymously (I.E. the senders email address is kept private?) so if anyone has a recommendation then they may just let you know here.

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Re: Adverse possession or easement?

Post by withreason » Fri Jul 27, 2012 12:43 pm

Mattylad wrote:I doubt the suspension is because of your request. Although I am keen to find out why myself.

That leaves only email or public post. If you have the setting to allow other members to email you, however I am not sure if it is done anonymously (I.E. the senders email address is kept private?) so if anyone has a recommendation then they may just let you know here.
If a recommendation is given here, that could compromise a person's anonymity. I would hope that any recommendations given were not mentioned as to whom gave it if the OP had decided to use a recommended law firm. They do ask how you found them, a simple "recommendation" answer I would hope is given.

I contacted gardenlaw myself as I am now worried that my threads could prejudice my case if found. I even feel at risk by saying this here! I have not been replied to, this is worrying. We all start off not knowing how we are going to proceed so ask questions here, by doing this we give information (often asked for) which could, in our views, be recognised due to the uniqueness of what is happening. I am worried, and because I am worried I wish to go off radar but felt I needed to state why as my request has been ignored, thus my reason for making it public which again is worrying.

This is what the message sent to me from garden law said above the message I sent to them, as a copy is sent when you contact via email. I don't know if the email address is given to the recipient though, however such as gardenlaw would have access to our email address anyway.
Hello gardenlaw,

The following is an e-mail sent to you by withreason via your account on
"Garden Law Discussion". If this message is spam, contains abusive or other
comments you find offensive please contact the webmaster of the board at
the following address:

admin@gardenlaw.co.uk

Include this full e-mail (particularly the headers). Please note that the
reply address to this e-mail has been set to that of withreason.

Message sent to you follows

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Re: Adverse possession or easement?

Post by Mattylad » Fri Jul 27, 2012 2:02 pm

If you are concerned about your own threads compromising a legal case then we can remove them from public and remove any compromising information that you tell us to remove before returning them - or just remove them completely.

You would have to identify them specifically though (links).
(Previously I would have suggested PM'ing this info :cry: )

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