Adverse possession advice

skevvybritt

Hi all, hoping someone can help with this!

We recently bought our first place. The garden was a state, and so I didn't notice at the time that there was a fence at the end which cut off the end of the garden, and that the neighbours were using that part of the garden. Key point are that there is a) a gate in that fence giving us access, and b) a shed on the land which the neighbours are using.

Having spoken to the neighbours about this, they say that they put a contract in place with a previous owner which gave them exclusive use of that bit of garden until they sold it on. However, he can't produce a copy of that agreement. He said he'd look for it, but I don't hold out much hope! He also mentioned that if he couldn't find that, they could always claim adverse possession.

So I have two questions - first, does that fact that there is a gate in the fence mean he can't claim adverse possession (because it's not "exclusive" use)? And second, if he can't produce the documents, are there any other steps we could take to find those, if indeed they do exist?

To over complicate this further, we're only the leaseholders, so do we have any right to pursue this? I just want the garden back!

Many thanks in advance for any help you can provide!

davidmcn

skevvybritt wrote: »

I just want the garden back!

"Back"? Is it in your title? Was it ever occupied as part of your garden?

HouseBuyer77

Does the neighbouring property have the same freeholder? If so would adverse possession even apply? The freeholder has granted them use of the land, they're simply trying to alter the lease boundaries.

Adverse Possession requires 10 years (or maybe 12 not entirely sure) use without complaint. Can your neighbour prove this?

I would have thought any agreement they made with the previous owner would not be binding upon you unless they got the leases altered.

skevvybritt

davidmcn wrote: »

"Back"? Is it in your title? Was it ever occupied as part of your garden?

Sorry, crucial info missing! Yes, the Land registry deeds show it as part of the property.

skevvybritt

HouseBuyer77 wrote: »

Does the neighbouring property have the same freeholder? If so would adverse possession even apply? The freeholder has granted them use of the land, they're simply trying to alter the lease boundaries.

Adverse Possession requires 10 years (or maybe 12 not entirely sure) use without complaint. Can your neighbour prove this?

I would have thought any agreement they made with the previous owner would not be binding upon you unless they got the leases altered.

I believe not, I think the neighbour owns his own freehold, although I can't be sure.

Re proof, they've been in the property longer than 12 years (other neighbours confirm), but I'm not sure where the burden of proof lies or what might constitute proof.

And on the last point, I'd hope not, but clueless on this type of thing!

davidmcn

In that case you may wish to check whether you have a case against your sellers for not providing vacant possession of the entire property.

skevvybritt

davidmcn wrote: »

In that case you may wish to check whether you have a case against your sellers for not providing vacant possession of the entire property.

Thanks David, how would I check that? Get the lawyers back in again I assume?

AdrianC

skevvybritt wrote: »

Sorry, crucial info missing! Yes, the Land registry deeds show it as part of the property.

Then, if there's no tenancy in place, and adverse possession hasn't been applied for yet - you need to re-establish your boundaries and exclude their access. ASAP. Before they DO apply for adverse possession.

If they prove they have a valid tenancy, they get to continue access under the terms of that tenancy, until such time as it can be terminated.

moneyistooshorttomention

Agreed.

Personally - I'd block their access asap. I would be checking if the shed was theirs or had been put there by previous owner of my house. Unless I had proof they had bought the shed - I would take it that that was mine too.

If I did have proof they had bought the shed - I would dismantle it carefully and put it back into their garden.

Act quickly - before they have a chance to think of countermoves or they may succeed in stealing part of your garden. Getting your land back fast = dispute resolved. Letting them get away with it = dispute is still there and will always be there.

I think the fact that you have a gate in your fence to get to the rest of your garden should mean you are safe from them being able to claim "adverse possession". This being because one of the main criteria for a would-be land thief is to be able to claim "exclusive possession" - basically excluding everyone else (including the rightful owner). Well - you havent been "excluded" - as you can readily gain access to that part of your garden. I'd remove the gate fast - before they start trying to put a padlock on the other side of your gate and preventing you accessing that part of your garden.

Take photos of both sides of your gate IMMEDIATELY - ie to prove there is no padlock there now.

AdrianC

moneyistooshorttomention wrote: »

If I did have proof they had bought the shed - I would dismantle it carefully and put it back into their garden.

Sod that. You're then potentially liable for any damage. You'll give them access, at a time to be arranged, to dismantle and move it themselves.

Seanymph

If it's on your deeds, it's yours.

If they want to claim adverse possession they would have to do just that - claim it - and that's a legal case through the Land Registry and they have to have total and uninterrupted access.

I would tape him saying there was an 'agreement' - as soon as there is an agreement they can't adversely possess it because they had permission.

They don't have permission any more. So off they go.