Adverse Possession of a basement

HolyNougat

I am going to need to take legal advice on this on I know, but if anyone has any ideas or thoughts they would be appreciated!

I recently purchased a very old house in a seaside village, it was listed as a freehold and the title plan shows it as such, but after moving in I discovered a massive 'flying freehold' in the form a basement under the property which the neighbour had been occupying!

As I have freehold title to the property and neighbour has been down there in the knowledge the previous owners of my property can he really claim adverse possession? (his deeds do not show him as owning the same footprint as my house)

I suppose the question is can someone really dispel paper title to property under the Land Registration Act if they have been occupying a basement of a property in the knowledge of the owner of the house above?

Its a tricky situation!

Thanks,
HN

ILW

Did your solicitor not pick up on the flying freehold before you purchased?

HolyNougat

No - The title plan of the property is a freehold and there is nothing in the searches that indicates that the property is anything other than a standard 'to the centre of the earth' freehold....

PasturesNew

Oh boy - an interesting thread! This reminds me of a story told to me by my builder, he was doing some work in somebody's house and they asked him to check in the loft as they heard noises and wondered if there were birds up there. He couldn't open the loft hatch, so he got his tools, it was boarded over, he cut through and found .... a family living up there. The next door neighbour had knocked through the roof wall, done it up and was renting it out. Apparently this was often found to happen where he used to live, up north somewhere.

So, what we have here sounds like an opportunistic neighbour who realised the previous occupant never used their basement, so they knocked down the wall and did it up.... or, maybe, he had verbal permission, who knows. So, I wonder how many years he's been down there.

What does he say about it?
How did you find out?

HolyNougat

Yes - that is basically the problem. He has been in occupation of the basement for around 40 years, I found out about because the neighbour knocked on the door to inform me about it! - As I mentioned previously, the issue as I see it is if the title owner of the land is aware of the attempt at adverse possession and basically does nothing, surely that means that adverse possession cannot be granted and when the title owner decides to retake the land (basement) the other party would just have to leave...

princeofpounds

wow, tricky situation

From my brief reading on adverse possession, it would seem that the claimant (neighbour) would need to prove two things.

The first would be intention to possess - I think they can do that given they have actually been occupying the space.

The second is uninterrupted factual possession for the required period (10 or 12 years depending on the type of land).

I think what is crucial here is if the basement was occupied with permission or not. If permission was given (or any kind of lease) then the claimant CANNOT claim possession. Was the seizure of the basement an arrangement with the previous owner or a genuine seizure?

I think you are in an interesting, if annoying, situation where you will have to get the 'squatter' out of the basement, and whether you manage it or not you are looking at having to make a massive claim against the vendors of the house. Also worth looking at the EA in case any written sales material breaches the misdescriptions act as a result of the occupation, and perhaps there might be some liablity resting with your solicitor or surveyor.

Time to go get a legal opinion I think.

princeofpounds

if the title owner of the land is aware of the attempt at adverse possession and basically does nothing

I think a lot is going to hinge on whether this constitutes permission or not, implicit or otherwise.

silvercar

Did the vendor know and not declare? If so the vendor is at fault. either they should have said the basement was occupied on informal lease or sold as a flying freehold

princeofpounds

OK so there is an interesting amount of case law about this. The original owners when the occupation began hopefully knew about it. If they did not know then it could be considered a genuine adverse possession case.

If they knew and granted a license to occupy (oral or written or through actions such as negotiating over a potential lease) then that is implicit or explicit permission and there is no adverse possession.

Thankfully change of ownerships have been held not to invalidate a license, so as long as the occupier was given permission early enough on it will never have become an adverse possession case. There is some debate over what happens if the occupier breaks the term of the license sufficiently to 'breach' the permission (for instance grazing sheep on a field that they were only permitted to grow grass on), although at the moment it seems this is is also not adverse possession.

I wonder also if there has been any easement established, so even if the title to the land can be clarified as yours and the occupier moved out, the occupier might have established a right to use of the space.

Man, I am so sympathetic to your situation...

HolyNougat

Thanks everyone! - you have basically confirmed what I thought.
There must be a case here against the surveyor / solicitor or possibly vendor.

Ideally what I would like to do is just take up the floor go down to the basement, throw all his stuff out and brick up the wall....

Back to the adverse possession, there is no title or any kind of formal arrangement (that I am aware of) but the 'squatter' claims that all previous owners of my house were aware of the arrangement, which cannot be good for him - the other thing that I am confused about, how can he claim 'adverse possession' of the basement, when that would mean that he would essentially own my house! (if he were issued with deeds) - as the basement is basically 80% of the footprint of the property...

ceridwen

YeGods and little fishes...

What an awful situation.

Well - I guess THE first question of all is:

- Never mind how long this squatter has been living in YOUR basement - can they prove it?

If they havent got proof of them squatting for over that relevant period of years (think its 12 years?) then I very much doubt the "law" would allow them to stay put. I think THE $64,000 question is not how long have the squatters actually been there - but how long can they PROVE they've been there. Even if they have been there a LONG time in actual fact - what have they got in the way of means to provide proof as evidence of their length of stay IYSWIM (ie so what if they have been there for more than 12 years - they might only be able to "prove" they've been there for less than 12 years).

So - your first question to ask yourself is "Could they possibly have a way of 'proving' they have legally stolen your house space?". As to what they could use for such proof. What could that proof be? At a guess they might try the following:
- photos of them in what is clearly your property (basement part of) with a copy of that day's newspaper in their hands - ie showing a date more than 12 years previously.
- companies that provide services like fuel/tv licence/etc having evidence that they have supplied services to your basement for more than 12 years
- some people "swearing on their life" that the squatters have been there for more than 12 years (well - thats hardly "strong" proof - as a lot of people could be bribed to tell lies).

Personally - I would get a private detective onto it to see if the squatters would be able to turn up "evidence" that they "owned" this "stolen" bit of your home. MUCH cheaper than getting solicitors involved.

My assumption is that the private detective would "come up with the goods" - ie there wouldnt BE anything the squatters could use as proof that your property is their home. In which case - I CAN only speak personally and, at that point, I personally would get in the "heavies" to literally throw their possessions out (DO make sure their possessions dont go missing or get damaged in the process forgawdsake and keep inventory/photos of what has just been taken off your land) and then brick up the wall and wait and see if the squatters had the sheer gall to try and bring any legal case against me for reclaiming the rest of my home.

So - first step of all - google for a good private detective and see what they can find out one way or another - and then at least you know where you stand. After that what action you take is up to you. We CAN only say what we personally would do in those circumstances.