Complex one... Adverse Possession

Colin_Winter

Hello

A complex problem – I will try and keep it simple…

I am a freeholder in a building with 8 flats.

Basement leasehold flat:

Owners of 15 years (not resident in the property, whereabouts unknown) historic non payers of bills, service charges, big pile of CCJs, unpaid Council tax, utility bills etc

A creditor has obtained a charging order and right of sale on the basement flat. Vacant possession was required last month – and the tenants evicted.

The property is now empty.

We (the freeholders) are trying to get our service charge arrears monies secured against the property via the courts and a CCJ before the property sells. We are using a solicitor in that respect.

NEW PROBLEM THIS WEEK.

Alongside the basement flat there are communal cellars (old coal cellars) and a hallway. Three cellars with doors. For use by the freeholders for storage – all clearly marked on the leases.

The owners of the basement flat have filled these with all sorts of junk, furniture and boxes – this extended to the communal stairs and basement passage – blocked with boxes, furniture etc.

They did this around 10 years ago – and during that time we have tried to get the (2) management companies to tackle the problem – letters (no reply), physical notices on items – but due to a switch in management companies and heels being dragged it has never been cleared.

Now the flat is empty we have gone down to the communal basement area and cleared it ourselves.

One of the doors to one of the coal cellars was locked shut from the other side(?). I tried to crowbar it open but it would not move.

I then drilled through the door and made a hole – plasterboard.

The owners of the basement flat have knocked through a wall and created a third bedroom. Plaster boarding over the cellar door and building a fitted wardrobe in front of it!

The room has been decorated, carpeted, has cornicing and has electricity.

After the shock of this discovery my initial thoughts were – fantastic, concrete proof of breach of the lease.

Then, after some research, I find out about Adverse Possession.

My (limited) understanding on this – someone can after 12 years have claim to ownership of a property, by either occupying the property with the owner not knowing (neglect) or if the owner knows and does nothing – a ‘contract’ is created.

What are my options here?

I am hesitant about instructing a solicitor as I fear it will be a lengthy argument about when they occupied the cellar – they will say 12 years ago, we will say 10 years ago.

Can I go in and simply brick up the hole they have cut from their flat? – problem here: the room has electricity. Can I legally do that?

Am I allowed to open up the door (that is still ours, the freeholders, right?) and re-open access to the communal cellar area – as clearly marked on the leases.

Do not brick up the hole, but leave access open to the communal areas – that will be picked up in any conveyancing process when the flat is sold and we can make objections then?

What would be the likely consequence of taking the room / property back? The owners who did this have gone – and provided vacant possession (but still own until it is sold). Do I get my solicitor to write to the person (their solicitor) who has the Order Of Sale and make them aware of this – they will have to do something(?).

Thank you in advance for your advice in this confusing situation

Colin W

moneyistooshorttomention

I don't see why you couldn't just get on and reinstate the status quo - ie taking your communal cellar back and making it back into a cellar again. People like that aren't likely to be together enough to try and fight the rightful owners about it anyway.

I don't suppose they've gone and applied to steal this room by "adverse possession" claim to Land Registry. I think these days the LR are supposed to notify the real owners of property if someone tries to?

Hopefully the Land Registry rep will be along shortly and can clarify on that from their pov.

G_M

Has an application been made for adverse possession? I doubt it given the absentee nature of the leaseholder!

So just re-instate your property and thus knock on the head any future application.

https://www.gov.uk/government/publications/adverse-possession-of-registered-land/practice-guide-4-adverse-possession-of-registered-land

ThePants999

If you have to include "complex one" in your thread title, that's a pretty good indication that you shouldn't be relying on an internet forum and should get actual legal advice :-) That said, here's my totally unqualified and poorly-thought-out response.

Firstly, I started off unconvinced that adverse possession could even be relevant given that we're talking about a leasehold property, but section 11.2 in https://www.gov.uk/government/publications/adverse-possession-of-registered-land/practice-guide-4-adverse-possession-of-registered-land covers this, and although it's a bit hard to follow I think it says "yes, the tenant would be able to apply to have the land added to their lease".

So I guess the key thing here is that the people who have had possession and might actually do this are absent. Once they are no longer the owners of the lease on the flat, they're not going to have any interest in applying to have the extra room added to the lease. So in your position, I might make an attempt to sweep the problem under the carpet - brick up the hole, get in touch with the EA/conveyancer to ensure the flat is marketed as 2-bed and try to rush things along. Once you have a leaseholder who believes they own a 2-bed flat, you're surely in much calmer waters!

On the other hand, taking a completely different perspective: you clearly haven't cared very much that you've not had access to this cellar. One might even argue that the freehold is worth more as a result of including a three-bedroom flat and two unused cellars in the basement than it was with a two-bedroom flat and three unused cellars - so perhaps you shouldn't worry too much about this :-)

Guest101

Colin_Winter wrote: »

Hello

A complex problem – I will try and keep it simple…

I am a freeholder in a building with 8 flats.

Basement leasehold flat:

Owners of 15 years (not resident in the property, whereabouts unknown) historic non payers of bills, service charges, big pile of CCJs, unpaid Council tax, utility bills etc - only vaguely relevant if you have a CCJ against them (or a repossession case)

A creditor has obtained a charging order and right of sale on the basement flat. Vacant possession was required last month – and the tenants evicted. - by who?

The property is now empty.

We (the freeholders) are trying to get our service charge arrears monies secured against the property via the courts and a CCJ before the property sells. We are using a solicitor in that respect. - significant amount?

NEW PROBLEM THIS WEEK.

Alongside the basement flat there are communal cellars (old coal cellars) and a hallway. Three cellars with doors. For use by the freeholders for storage – all clearly marked on the leases.

The owners of the basement flat have filled these with all sorts of junk, furniture and boxes – this extended to the communal stairs and basement passage – blocked with boxes, furniture etc. - Ok

They did this around 10 years ago – and during that time we have tried to get the (2) management companies to tackle the problem – letters (no reply), physical notices on items – but due to a switch in management companies and heels being dragged it has never been cleared. - You need a court order to remove goods really

Now the flat is empty we have gone down to the communal basement area and cleared it ourselves. - ??? And done what with the property?

One of the doors to one of the coal cellars was locked shut from the other side(?). I tried to crowbar it open but it would not move.

I then drilled through the door and made a hole – plasterboard.

The owners of the basement flat have knocked through a wall and created a third bedroom. Plaster boarding over the cellar door and building a fitted wardrobe in front of it! - Well it sounds like no-one has checked this for 10 years?

The room has been decorated, carpeted, has cornicing and has electricity.

After the shock of this discovery my initial thoughts were – fantastic, concrete proof of breach of the lease. - that wouldn't be the first thought of many people

Then, after some research, I find out about Adverse Possession.

My (limited) understanding on this – someone can after 12 years have claim to ownership of a property, by either occupying the property with the owner not knowing (neglect) or if the owner knows and does nothing – a ‘contract’ is created. - more or less correct

What are my options here?

I am hesitant about instructing a solicitor as I fear it will be a lengthy argument about when they occupied the cellar – they will say 12 years ago, we will say 10 years ago. - you need a solicitor

Can I go in and simply brick up the hole they have cut from their flat? – problem here: the room has electricity. Can I legally do that? - well you wont be arrested for it, at least not initially. But it wont stop legal claims

Am I allowed to open up the door (that is still ours, the freeholders, right?) and re-open access to the communal cellar area – as clearly marked on the leases. - I wouldnt

Do not brick up the hole, but leave access open to the communal areas – that will be picked up in any conveyancing process when the flat is sold and we can make objections then? - To the new owners? It just wont sell

What would be the likely consequence of taking the room / property back? The owners who did this have gone – and provided vacant possession (but still own until it is sold). Do I get my solicitor to write to the person (their solicitor) who has the Order Of Sale and make them aware of this – they will have to do something(?). - They wont have to do anything really.

Thank you in advance for your advice in this confusing situation

Colin W

I'd get professional legal help. No claim has yet been made, and technically they didn't use it unmolested for 12 years. But that wont stop a protracted legal battle

Colin_Winter

Thanks for your responses.


My gut reaction to the occupying of this cellar is to go for forfeiture of the lease - as they are in complete violation of it, altering the building structure, occupying communal areas, blocking communal areas.


If I instructed my solicitor to go for forfeiture this would definitely bring these people out of the woodwork, as they would lose the flat and also any secured debts against the property would vanish. This would no doubt get the person and their solicitors who have the Order to Sell hot under the collar, and they would be looking deeply into the reason for forfeiture. Hence my concerns regarding Adverse Possession and whether that could be argued by their solicitors - ie they grabbed this cellar around 10 years ago and we did not notice.



It has always been our intention to modernise the communal basement, but it has been a long process - with one freeholder passing away in that time. And the block management company dragging it's heels on it.

Colin_Winter

I would add that no one could get access to the basement flat - ever. They (the tenants) would not answer the door to anyone. We could never inspect the flat. They would not allow the fire alarm system to be installed in their flat - no doubt because we would discover an extra room.

Guest101

Colin_Winter wrote: »

I would add that no one could get access to the basement flat - ever. They (the tenants) would not answer the door to anyone. We could never inspect the flat. They would not allow the fire alarm system to be installed in their flat - no doubt because we would discover an extra room.

That's not really anything to do with you.


They don't have to answer the door, or allow any inspection.

Colin_Winter

Yes they do under the terms of their lease. As a freeholder I am allowed access to inspect their flat under the terms of their lease. Example: installation of fire alarm system, throughout the whole building including their flat. Could not gain access - letters written, emails sent - no reply.

moneyistooshorttomention

Colin_Winter wrote: »

I would add that no one could get access to the basement flat - ever. They (the tenants) would not answer the door to anyone. We could never inspect the flat. They would not allow the fire alarm system to be installed in their flat - no doubt because we would discover an extra room.

Well - in that case this brings up the fact that there are several grounds for applying for "adverse possession" of property. I believe one of these grounds is that the would-be thief has been doing so "openly".

Since they weren't letting on about this/you had no way to be able to spot them doing this = they certainly weren't doing so "openly" at all. Au contraire - they were being extremely secretive about it.

I very much doubt they are going to even try to do this - but, if they did, then you just come up with proof that you tried to get in the flat whilst they were still living there and they would never let you.

Even if the only proof you have is your word against theirs (ie rather than something in writing) = I still rate your odds against theirs on this one.

EDIT; If you have kept copies of those letters and emails - then there is your proof.

Colin_Winter

I have paperwork 2ft thick on these people. EDF, Water, gas have all failed to gain access.