Preventing Adverse Possession

fluffymuffy

The house behind us has a driveway that runs along our back hedge. The people there have made a path down the side of their garage by excavating into our hedge. The boundary as shown on the deeds goes right up to the garage.

I don't mind that they've done this to gain access round the back of their house but I don't want them to go on and register it as theirs. The deeds are very clear and there is no room for debate on that point but I understand that after some years they can claim adverse possession.

If I casually say I don't mind the path would that be enough to have given them permission and thus they couldn't claim adverse possession as they were using it with my consent? Should I put that in writing? I don't want to get litigious and so wonder if there's a legal but casual way to say that? Any thoughts?

I don't know how long the path has been there. The property ownership behind us changed nearly three years ago (more names were added to the ownership) and no changes are shown on the deeds from then which differ from our deeds (I bought copies from Land Registry). I'd have thought that was a time they might try to register more land if they were going to. Unless the path wasn't there long enough at that point.

Mojisola

fluffymuffy wrote: »

The house behind us has a driveway that runs along our back hedge. The people there have made a path down the side of their garage by excavating into our hedge. The boundary as shown on the deeds goes right up to the garage.

I don't mind that they've done this to gain access round the back of their house but I don't want them to go on and register it as theirs. The deeds are very clear and there is no room for debate on that point but I understand that after some years they can claim adverse possession.

To claim adverse possession, they would have to have fenced it off in a way that excluded you from the land. They could acquire a right to use the path if you don't object to the use.

If I casually say I don't mind the path would that be enough to have given them permission and thus they couldn't claim adverse possession as they were using it with my consent? Should I put that in writing? I don't want to get litigious and so wonder if there's a legal but casual way to say that? Any thoughts?

Your word against their word, ten years down the line? That's no good. If you really don't mind them using it, get an agreement in writing and make sure they sign it. If permission is given to the use, it can be withdrawn at any time.

I don't know how long the path has been there. The property ownership behind us changed nearly three years ago (more names were added to the ownership) and no changes are shown on the deeds from then which differ from our deeds (I bought copies from Land Registry). I'd have thought that was a time they might try to register more land if they were going to. Unless the path wasn't there long enough at that point.

It would be worth keeping an eye of their use of the path. If they start to make alterations to it, make sure they remember who owns it.

Yorkie1

There's no need for the written agreement to be acrimonius; you could just say that the solicitors will need to see something if either of you ever sell, so best to get it sorted out now so less stress later on.

PasturesNew

It needs to be in writing, done by a solicitor... so they don't take the p155

taxsaver

Your issue isn't only one of adverse possession, but also that through continued and unchallenged usage they will gain a legitimate right of way. I do think you need to deal with this sooner rather than later.

Richard_Webster

Making it clear in writing that they are using with your consent is sufficient to prevent adverse possession being claimed but as others have suggested it is a matter of the reliability of evidence whether a copy of your letter to them (which they can deny they ever had) will be sufficient.

The Land Registry will serve notice on you if they try to claim adverse possession. if you do then set up a defence of a revocable permission given to them I suspect the Registry will take it seriously as most people won't have thought of that.

So you simply need to produce as much evidence as you can of delivery of any letter containing the permission. Photo of you handing it to them? What about a notice placed on some object near the boundary which gives the personal and revocable permission and which you can photograph and time stamp? If they are prepared to sign something then obviously that's best.

dopester

Richard_Webster wrote: »

Making it clear in writing that they are using with your consent is sufficient to prevent adverse possession being claimed

That isn't how I remember it from multiple examples from many land law books with consent alone not being sufficient to stop adverse possession and the clock ticking. However I accept there have been a few changes since then I'm a bit hazy on.

Consent isn't enough to stop the clock ticking in my opinion, or it's on the weak side.

I seem to recall a (big) landowner losing many acres because he consented to his friends not paying him any rent for the farmhouse he owned and his fiends lived in - and years later they filed an adverse possession claim. His friends won. The farmhouse and land in that case was worth £1m+.

If "consent" stopped the adverse possession clock running, every council/superior owner who has ever challenged an adverse possession claim for ownership brought against them... using their land or living in the property, there would never have been any adverse possession cases ever won by possessor.

Mojisola

Willing to be corrected but I thought that the essential thing needed for adverse possession is that the claimant has to have excluded the owner from the land and used the land as if they were the owner. Just by walking across part of the OP's garden would not allow the neighbours to claim adverse possession.

They might be able to claim an easement if they keep using the pathway for twenty years without the OP's permission. If they have permission, they can't claim an easement.

Richard_Webster

Quote:
Originally Posted by Richard Webster
Making it clear in writing that they are using with your consent is sufficient to prevent adverse possession being claimed
That isn't how I remember it from multiple examples from many land law books with consent alone not being sufficient to stop adverse possession and the clock ticking. However I accept there have been a few changes since then I'm a bit hazy on.

Consent isn't enough to stop the clock ticking in my opinion, or it's on the weak side.

I seem to recall a (big) landowner losing many acres because he consented to his friends not paying him any rent for the farmhouse he owned and his fiends lived in - and years later they filed an adverse possession claim. His friends won. The farmhouse and land in that case was worth £1m+.

If "consent" stopped the adverse possession clock running, every council/superior owner who has ever challenged an adverse possession claim for ownership brought against them... using their land or living in the property, there would never have been any adverse possession cases ever won by possessor.

Obviously you have to repeat the permission and evidence it every few yaers. In the case you mention there was a licence and an annual amount was payable and they stopped collecting it for 12+ years so the time ran against them.

princeofpounds

You own this land. This is your path.

I suspect that you are barking up the wrong tree thinking about adverse possession. Much more problematic is the idea that they may get a right-of-way easement through continued use.

I suspect what you will have to do is the sort of things people do for private roads - they have a gate which has to be closed once a year (or however often). This stops the access becoming continual for a long period of time.

Or just build a fence so they can't use it at all!

Have you spoken to them at all about it or did they do it unilaterally?