Issue with land next to house

KGUK

We bought house our a few years ago. During the sale we queried a narrow piece of land (just wider than a car) that runs the length our property. The land is unregistered and we were told the owner couldn't be traced. We proceeded with the sale and almost immediately after moving in a random man claimed the land was his. He installed a gate and put a claim in via the land registry for adverse possession. We rallied some neighbours to respond and his application was declined. He then threatened someone at our property and was charged. Over the last 18 months we haven't heard from him. The land is sitting getting incredibly overgrown. We have contacted the council and land registry for advice but we cannot track down the owner.  We assume it was the originally builder of the estate who has now died. Neighbours are happy for us to move our fence line back so the land becomes ours but I am not sure legally where we stand. Our deeds state we have to have access to land as our drains are located on it. If we move our fence (approx 2.5m) and then he was to come back although he doesn't have a legal standing could he remove our fence? Any suggestions of what to do? 

neilmcl

So in effect yo want to do exactly what the other guy tried to and take possession yourself.

Petriix

I would suggest that you don't do anything which incurs you much cost or does anything destructive to the land and nothing that can't easily be undone; but if you get away with using the land for a long period then you may be able to make a valid claim for ownership.

Davesnave

neilmcl said:

So in effect yo want to do exactly what the other guy tried to and take possession yourself.

Not quite. The other party apparently doesn't live next to the land and therefore hasn't any specific interest in it so far as we can tell from the OP.

KGUK does live next to this land and their drains run into it, so they have more to lose if someone else takes possession of it and denies them access.

Adverse possession laws exist so that land doesn't just sit idly for ever, so if KGUK wants to  go to the expense of enclosing the land, they should do so, but until the appropriate time has passed there will always be a danger someone else with a claim will come along and challenge the situation. It's the nature of the beast.

robatwork

Personally I wouldn't enclose it but start to use it. Tame it, trim the plants, perhaps plant it or turf it. Put some cheap makeshift border around it without being a fence or wall - maybe some wooden or metal posts with string. I'd also possibly try to grow something up the "border" maybe with some trellis.  Nothing that would cost 100s or 1000s to remove or if damaged, but something that says "I'm using this".

Mojisola

robatwork said:

Personally I wouldn't enclose it but start to use it. Tame it, trim the plants, perhaps plant it or turf it. Put some cheap makeshift border around it without being a fence or wall - maybe some wooden or metal posts with string. I'd also possibly try to grow something up the "border" maybe with some trellis.  Nothing that would cost 100s or 1000s to remove or if damaged, but something that says "I'm using this".

If KGUK wants to claim adverse possession in the future, they need to enclose it properly so that they can show that they have had physical control over it.  A bit of string that other people could step over probably wouldn't be enough.

KGUK

Thanks, I appreciate the input. This guy doesn't live anywhere nearby. We believe he wanted to sell the land although nothing can be built on it due to our drains. You could probably store 1-2 cars or a caravan on the land but they would have to be moved whenever we wanted so would be pointless for someone else to own it. We measured our garden today and realised that our fence can be pushed out approx 1 foot according to our title deeds. Whoever installed the fence didn't measure it accurately plus it could be argued the 1960s hand drawing (with no use of a ruler)  isn't exactly precise. Our neighbours are keen for us to take over the land so it can be maintainedand avoid someone else coming along and trying to take it over.  I would be happy to pay for the land if I could find the rightful owner! 


 

Norman_Castle

If you fenced the land only the owner could remove your fence. Mr Randoms claim was denied. He might re appear but he cannot legally remove a fence.

TheCyclingProgrammer

With no owner coming forward I'd just go for it and fence it off - just be prepared that if the genuine owner ever re-appeared and was able to make a valid claim on the land that you would need to remove the fence and make good at your own cost. If you're willing to take that risk (and it seems relatively low IMO) then go for it. You have the support of your neighbours so doesn't sound like you have much to worry about.

greatcrested

If you want to claim adverse possession, you need to fence it off and use it as if it were your own.

https://www.gov.uk/government/publications/adverse-possession-of-1-unregistered-land-and-2-registered-land/practice-guide-5-adverse-possession-of-1-unregistered-and-2-registered-land-where-a-right-to-be-registered-was-acquired-before-13-october-2003

You must show that:

• the squatter has factual possession of the land
• the squatter has the necessary intention to possess the land
• the squatter’s possession is without the owner’s consent
• all of the above have been true of the squatter and any predecessors through whom the squatter claims for at least 12 years prior to the date of the application (see The limitation period)

2.1 Factual possession

In Powell v McFarlane ((1977) 38 P & CR 452, approved in the House of Lords in J A Pye (Oxford) Ltd v Graham [2002] UKHL 30) Slade J said:

“Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so.”

Where the land was previously open ground, fencing is strong evidence of factual possession, but it is neither indispensable nor conclusive.

robatwork

greatcrested said:

Where the land was previously open ground, fencing is strong evidence of factual possession, but it is neither indispensable nor conclusive.

I did say string but I didn't say how high - string at waist height then perhaps one or two other bits higher and lower should show possession - depends what a judge thinks is "conclusive".