Adverse Possession

olgadapolga

I'm in the process of buying a house and have found out that the garden is physically smaller than shown on the title plan as the boundary fence is about two feet into the garden of the house I'm purchasing.

My solicitor queried this with the vendors, only to be told that the fence has been like that for over twenty years and they are not prepared to talk to the neighbour about it. They state that the neighbour can claim adverse possession and therefore it's tough. "Sold as viewed" was the exact phrase used.

My solicitor says that I can still purchase the property but that there is a risk that the neighbour will claim the land, in which case I'd lose the strip of land anyway. As far as I can determine, the neighbour has not yet made a claim for the land.

The neighbour purchased his house four years ago, and the previous occupant was there for 12 years.

Is there anything I can do about this? I'm concerned that if I go ahead anyway and things stay as they are then I'll have problems selling it again.

Would it be a mistake to buy this property? My solicitor wasn't too forthcoming with an opinion on this, other than to ask for a price reduction and I really don't know what to do. I'm not at all happy about it but my husband says that he can live with it, even if the strip is lost through adverse possession.

If anyone can offer any advice, I'd be grateful!

Thanks for reading

davidmcn

Why would you think of it as "losing" the strip if you've never occupied it in the first place, and presumably haven't based your price on being able to? A 2 foot wide strip of garden is hardly likely to be worth much anyway.

AdrianC

A 2ft strip is within the tolerance of drawing errors on the plan.

You viewed the property and were satisfied with the size of the garden, as you perceived it at the time.

moneyistooshorttomention

Well it would give a "nasty taste" in the mouth to know one had neighbours like that.

Though I guess there is always the possibility of you knocking on their door and asking what they understand the position to be - and letting them know you are interested in the house, but would want to have all your garden yourself, and see what their reaction to that is.

They may be decent people and unaware what a previous owner of their house did and, if told, would put matters right.

I'd say the choice is between knocking on their door and hoping they'd sort it (before buying it) on the one hand (and maybe rejecting the house if they planned on keeping that bit of your garden)

OR

Putting up with the "nasty taste in mouth" as to what the neighbours were like - BUT offering noticeably less for the house to those vendors that were/are too weak to stand up for themselves.

G_M

Do you particularly wnat that extra land? Presumably when you viewed, and made your offer, it was on the basis of the fence being where it is and you were content with that?


Once you own/move in, you could of course move the fence to where the Title Plan shows it to be (having first checked the neighbour's Title Plan to ensure it concurs with yours!)


That of course would doubtless cause some negative neighbour relations which could be unpleasant, and could lead to a verbal or legal dispute. Check with your solicitor, but I am fairly confidant that if you did this before any claim for adverse possession had been registered, no claim could subsequently be raised (since the claimant must use the land for 12+ years uncontested).

Or make a big deal now and insist the seller deals with it before you Exchange Contracts. Would you be willing to walk away if he refused?

D_M_E

Given the seller's "don't care" response to your query, you've got to wonder what else is waiting to surface.

They should sort it before sale and should have done so before offering the property for sale.

Maybe they are intimidated by the neighbours and don't want to approach them.

Could get expensive if you do buy and try and claim what's in the title.

G_M

Checking the neighbour's Title Plan would be my first step. Cheap, quick, easy and could be revealing.

Davesnave

Whether the current neighbour wants to go for adverse possession or not, it's unlikely that they'll be willing to move the fence at their own expense, or at a time to suit the OP. With the vendor also showing no inclination to help, I'd say the chance of sorting this before exchange is very low indeed.

We haven't had a full description of the area involved, or any indication of what is taking up this 0.6m, which surely isn't just bare earth. I have a 7m eucalyptus tree that's grown in the time this is alleged to have been ongoing!

So, apart from the hassle/expense of shifting the fence, what else would need to be moved/killed off in order to facilitate a correct alignment of the boundary?

Finally, how might people be convinced the boundary is misaligned? Is there a permanent feature that may be easily related to the fence line?

The expression 'Possession is 9/10 of the law' has found favour because there's more than a grain of truth in it. If I were the OP, I'd start from the assumption the fence is staying where it is, and if that still niggled after a week, I'd pull out.

olgadapolga

Thanks for taking the time to reply, everyone.

To answer a few questions:

The strip of land extends the length of the rear garden, from the house to the back fence. So that's probably 60' in length.

As far as I can determine, it's just being used as lawn.

It's apparently a shared boundary but I would not expect the neighbours to make any contribution to relocating the fence (even if they agreed) - it's hardly their fault.

I'd guess that the "permanent feature" present to convince others would be that the back garden and front garden fence are supposed to be a straight line from front to back but the fence starts off straight at the front of the property and then there's a sudden dog-leg in it.

The vendors definitely have a "don't care" attitude as there have been other issues that my solicitor says are the responsibility of the vendors but they have refused to deal with them. We decided to tolerate these, even though it means additional unexpected costs.

I also think that the vendors have had problems with the neighbours (and not just those next door) due to the business that was being run from the house. The vendors are denying that there have been any problems. I'm not convinced that they are being truthful for a couple of reasons - when we were there a couple of weeks ago checking a few things thrown up by the survey, one of the neighbours stormed in and had a major rant about an overgrown plant. What he expected us or the estate agent to do I have no idea being as neither party owns the property. There were also some comments of a telling nature from neighbours when the change of use planning application was being considered. Admittedly, I could just be reading more into this than is actually there.

Will have to have a long think about it and talk to my solicitor again before making a decision. My husband is keen to continue with the purchase as we've already spent money on fees/solicitors/surveys etc. If this issue means that we're going to have problems selling the property later on, I'd rather lose a bit of money now and look for another house than lose a larger amount of money later.

AdrianC

Frankly, I'd be more worried about the neighbours, by the sound.

G_M

Reading the first part of your post above I was about to ask you whether you'd spoken to the neighbours yet (and if not why not - I always do).


Then I read "one of the neighbours stormed in and had a major rant about an overgrown plant. What he expected us or the estate agent to do I have no idea being as neither party owns the property."

You have a neighbour who

a) has a temper
b) is unhappy
c) is irrational (regarding where he directs his anger.


Find another property.