Can I claim adverse possession?

mizzbonita

I own a leasehold ground floor flat and have always occupied and maintained the garden. When I say it was uninhabitable, you couldn’t get in it. A few years back I had it completely redone, had a fence put up and then discovered recently that the back of the garden is owned by the flat upstairs. 

They’ve always rented it out and so I’m not even sure they were aware or just didn’t care. The top flat is now up for sale and I’m wondering if I can claim adverse possession of that land? 

TheJP

As the owners are selling the flat i would assume it would be sold with the garden and as such would also form part of the diligence in the conveyancing. I don't think you have a claim.

mizzbonita

TheJP said:

As the owners are selling the flat i would assume it would be sold with the garden and as such would also form part of the diligence in the conveyancing. I don't think you have a claim.

Yea thought as much….annoyingly. 

cymruchris

If you really want the garden, you could get in touch with the estate agents to see if the vendor will sell the garden separately - but there'd no doubt  be fees involved, and it wouldn't be for the price of a second class stamp.

mizzbonita

cymruchris said:

If you really want the garden, you could get in touch with the estate agents to see if the vendor will sell the garden separately - but there'd no doubt  be fees involved, and it wouldn't be for the price of a second class stamp.

I might consider this. The way the land has been divided is ridiculous. To get to that part of the garden they would have to trespass over my land. There’s no way to really separate the gardens and have separate access. 

Hoenir

mizzbonita said:

cymruchris said:

If you really want the garden, you could get in touch with the estate agents to see if the vendor will sell the garden separately - but there'd no doubt  be fees involved, and it wouldn't be for the price of a second class stamp.

I might consider this. The way the land has been divided is ridiculous. To get to that part of the garden they would have to trespass over my land. There’s no way to really separate the gardens and have separate access. 

What do the property deeds specify? 

kimwp

Would it be trespass or do they have right of way? (Or whatever the term is)

mizzbonita

Hoenir said:

mizzbonita said:

cymruchris said:

If you really want the garden, you could get in touch with the estate agents to see if the vendor will sell the garden separately - but there'd no doubt  be fees involved, and it wouldn't be for the price of a second class stamp.

I might consider this. The way the land has been divided is ridiculous. To get to that part of the garden they would have to trespass over my land. There’s no way to really separate the gardens and have separate access. 

What do the property deeds specify? 

I will dig this out tomorrow and have a look and reply. 

eddddy

cymruchris said:

If you really want the garden, you could get in touch with the estate agents to see if the vendor will sell the garden separately - but there'd no doubt  be fees involved, and it wouldn't be for the price of a second class stamp.

The garden will either be demised to the other flat as part of the lease, or the garden is retained by the freeholder, and the other flat owner has the right to use it.


Either way, the freeholder would need to be involved in varying the leases to transfer the garden.

There's no benefit to the freeholder in doing that, so I suspect they would either not want to bother, or ask for a decent chunk of cash to make it worth their while. (Plus 3 lots of solicitors fees to pay for dealing with the lease variations - that will probably be into the thousands.)


Maybe it would be easier to come to come to an informal arrangement with the other flat owner to rent their garden, or something like that.

ThisIsWeird

Hi Mizz.
Can these gardens be rearranged - eg swapped - to make respective access more rational? If so, then perhaps an informal agreement can be arrived at with the new owner, especially if you get on well.
Or, if they are really not bothered, you could use it all with their agreement, perhaps even a shared use of it as one larger garden. All written down and signed as an informal agreement, but with the original boundary point still clearly easy to redetermine.
I'd suggest it would not be sensible for any flat owner to sell their presumably quite rare and valuable garden, as that would surely seriously affect resale value.
But, occasionally you will find someone who is not not bothered about having a garden, and would be happy for someone else to maintain it on their behalf. Always carries the risk that they'll have a renewed interest in the beautifully-landscaped garden, of course, but hey...
Almost certainly trying to negotiate a purchase before this sale goes through is a no-no. Afterwards, it could be one of the options.

mizzbonita

ThisIsWeird said:

Hi Mizz.
Can these gardens be rearranged - eg swapped - to make respective access more rational? If so, then perhaps an informal agreement can be arrived at with the new owner, especially if you get on well.
Or, if they are really not bothered, you could use it all with their agreement, perhaps even a shared use of it as one larger garden. All written down and signed as an informal agreement, but with the original boundary point still clearly easy to redetermine.
I'd suggest it would not be sensible for any flat owner to sell their presumably quite rare and valuable garden, as that would surely seriously affect resale value.
But, occasionally you will find someone who is not not bothered about having a garden, and would be happy for someone else to maintain it on their behalf. Always carries the risk that they'll have a renewed interest in the beautifully-landscaped garden, of course, but hey...
Almost certainly trying to negotiate a purchase before this sale goes through is a no-no. Afterwards, it could be one of the options.

No that wouldn’t be ideal because my part of the garden is the one closest to my flat and the biggest and best part tbh. I’ve spent the most money on that part. Theirs is at the back. 

So I’ve had a look at my original lease and this is what the original land registry and plan says. I’m really confused about that last bit of land (garden in blue) because when my lease was extended and my solicitor had the land registry updated, the wording and land boundaries have changed….i think. Is this an error or correct?