Adverse Possession rights: will we get them?

Kad_Williams

I'm currently beginning a collective enfranchisement with the other leaseholders in my building (we own flats in a period conversion in the UK). The process looks quite straight-forward: we get a valuation, we serve notice etc, etc.

The building has a storage space inside it that is used by most of the leaseholders but is not referred to in our leases.

It has been brought to my attention by one of the more long-standing leaseholders, that this storage space could be claimed by us through adverse possession rights and that that fact may impact value of the freehold. They put it to me that the amount the freeholder would be able to charge us as freehold premium would decrease as time went on because of this: that it's in the freeholders best interest to 'get on with it'.

Can any one here help clear up what could just be casual speculation? I wanna make sure I'm getting my facts right as much as possible. Is this pertinent in the way they have claimed, pertinent from another perspective, or not pertinent at all?

AdrianC

From the freeholder's perspective, it's the same cupboard in the same freehold building. It's going to need the same maintenance which would be rechargeable through the same service charge to the same leaseholders.

I really can't see how it'd make any difference to anybody but the leaseholder who claimed it, and can then point to a bit more of their property.

Let me guess who that might be...

Kad_Williams

What's your guess, Adrian?

Norman_Castle

The building has a storage space inside it that is used by most of the leaseholders but is not referred to in our leases.

Can an area inside a building be claimed through adverse possession? Would the area be considered communal and in use with agreement of the freeholder?

AdrianC

Kad_Williams wrote: »

What's your guess, Adrian?

...the person promoting it as a "good idea"?

GDB2222

I’m no expert, but I think adverse possession means excluding the owner. Has the freeholder been excluded? In other words, is the storage area locked with the leaseholders all having keys, but not the landlord? Do you know for sure that he doesn’t have a key?

The downside of raising this is that you lose the use of the space?

davidmcn

If the cupboard is effectively communal space then I don't see where adverse possession comes into it, or how it affects the freehold value (unless you mean there's an unleased portion occupied exclusively by the freeholder, and they ought to have exclusive use of the cupboard?).

princeofpounds

If the storage space has been used by leaseholders with permission ('under license'), then no, you can't claim it.

I also think you may have serious issues demonstrating exclusive possession of the space, and separately determining which parties might apply for title (max 4 names can appear on the legal title, although they can hold on trust for more).

Furthermore, encroachment onto registered land from a leasehold is not entirely straightforward. There is some legal debate about whether it is done on behalf of the freeholder or not. In any case, that land might be added to the leasehold (again I question whose leasehold!), but would then eventually become subject to reversion to the freehold (or more likely extension) along with the rest of the lease.

There are a few online case studies that talk about this situation in more detail but those I have found are mostly behind paywalls (e.g. lexisnexis). Search for 'encroachment from leasehold land onto registered land adverse possession' and similar terms. Smirk vs Lyndale developments 1975 is also a good case study search term, although it's not exactly parallel to your question it gets you to the right area of case law.

Personally I think all this is a red herring. The legal costs alone would dwarf any change in the valuation of the freehold (which is mostly valued by the value of your leaseholds and the time remaining to reversion, not cupboard space!). It would also take months. If I were you, I would do a bit more research, point out some of the obstacles to this person, and perhaps suggest that if they want to pay for a legal opinion to develop their case AND they demonstrate it makes a meaningful difference to financial outcomes you will consider it afresh.

Enfrachise the freehold and subsequently allocate access to this storage space as you see fit - that's clearly the most sensible way forward.

They put it to me that the amount the freeholder would be able to charge us as freehold premium would decrease as time went on because of this: that it's in the freeholders best interest to 'get on with it'.

I'm sorry, I don't even understand what they mean by this specific point. If you can explain further within the framework discussed below that might be helpful.

https://propertydivision.co.uk/freehold-enfranchisement-how-is-premium-calculated/

Kad_Williams

Apologies, Prince of Pounds - I'm trying to use the words of the leaseholder in question as much as possible rather than parse their words. I don't totally understand that sentence either and I've been loath to have them explain it as it is. When they say 'get on with it' they mean get on with the purchase. The freeholder has reached an impasse with the leaseholders thus far regarding (informal) premium negotiations and hasn't shown keenness to move the process forward at any particular pace.

For added context I am the newest leaseholder (I completed very recently) and so I'm coming into the predicament as a new set of ears. But I've taken on the mantle of leading the purchase, as the energy to deal with this seems to have drained from the other participants! So I'm trying to keep myself as informed as I can and mange expectations where necessary so that we all stay realistic about the purchase.

I've read everyone's responses here, (particularly yours) and I'm comfortable to conclude that this is probably a red-herring, as I somewhat presumed.

THANKS!