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What should I do ? Hi we are in the process of selling our

Customer Question

What should I do ?

Hi we are in the process of selling our house ( Sold subject to contract ) Since the sign has stated this - my neighbour has sent me a letter & copied it to the estate agents, saying that they have recently been made aware that the boundary fence adjoining our properties at the rear, is encroaching their land in excess of 12 inches the entire length of the garden.

We bought our house in January 1998 & the fence line has been in the same position since we purchased it. We have had 3 sets of neighbours since living in the property next door counting these and have never had any mention of this before.


The neighbours who are now complaining bought theirs in November 2004 & have never once mentioned this before now. ( 9 years later )

They are now insisting that they would like this rectified immediately and the works undertaken by ourselves with immediate effect.

These neighbours have also stated that they would appreciate immediate acknowledgement of this request and that any response be in written form for legal purposes as they do not wish to participate in any other form of communication with ourselves or our representatives.

We have always got on with all our neighbours - Except these!

Regards

Mark Barnett
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

Have the neighbours in question presented you with any evidence to support their claims please?

Joshua :

Have you examined your title plan associated with your title deeds?

JACUSTOMER-1d0stjwj- :

No they have not presented any evidence.

JACUSTOMER-1d0stjwj- :

I have never examined my title deeds

JACUSTOMER-1d0stjwj- :

As we moved in as stated in 1998

JACUSTOMER-1d0stjwj- :

and the boundary fence has always been in the position it is now

JACUSTOMER-1d0stjwj- :

These are the 3rd set of neighbours that we have had living in the property since we bought ours in 1998

JACUSTOMER-1d0stjwj- :

And they have been living in theirs since 2004

JACUSTOMER-1d0stjwj- :

So why have they only now 9 years later mentioned this?

Joshua :

Thanks. you should not be particularly surprised at the neighbours actions. It may be a coincidence but more likely they are being opportunistic calculating that you are more likely to be malleable to their demands legitimate or not at this time because you wish to sell and they will know that the rent of a dispute can be problematic to a seller...

Joshua :

the first step to resolving this situation is likely to be for you to obtain a copy of your title deeds which is based on the date you moved in, it should be registered with the land Registry. This being the case, they can be obtained for £6 pounds using the following link:

Joshua :

http://eservices.landregistry.gov.uk/wps/portal/Property_Search

Joshua :

some plans filed at the land Registry bear measurements and where this is the case, this is an easy resolution because such measurements where they exist on plans are legally binding. however, measurements are relatively uncommon on plans and therefore you should not expect them to be there. This being the case, what you have effectively here is a boundary dispute. If there is a dispute with regards the location of the boundary line then you can either agree between you where the boundary line lies or failing which you would need to resolve the matter either using the RICS boundary resolution service or through the land Registry adjudicator or alternatively the County Court.

Joshua :

It can often be difficult to determine the exact position of a boundary in terms of centimeters or inches but a plan should enable identification of land in terms of several feet usually. Properties are generally registered with a plan for identification purposes showing the general position of a boundary. Sometimes it can be relatively straightforward to determine the location of the boundary by reference to another structure such as the house but not always and even then not necessarily with the degree of accuracy that may be required.

JACUSTOMER-1d0stjwj- :

This is 16 years that we have lived here and the fence lines have always remained in the same positions

JACUSTOMER-1d0stjwj- :

Surely when people buy a property they do not expect to go around with a tape measure to check dimensions - because I certainly would not

Joshua :

If you are unable to agree the location of the boundary line, you can ask the Land Registry to determine the boundary on the title plans by instructing a surveyor to prepare a a very precise plan showing the exact line of the boundary in the surveyors opinion. You will need to use a RICS qualified surveyor to draw up a plan. You then complete form DB (link below) and send to the Land Registry who will inspect the same and serve a notice on your neighbour offering him the opportunity to object to their proposals. You can include the evidence such as you have with your application (including your statement about the length of time the boundary has been in existence).

Joshua :

http://www.landregistry.gov.uk/_media/downloads/forms/DB.doc

JACUSTOMER-1d0stjwj- :

When I purchased my house I saw what I was buying and bought it

Joshua :

There is a fee of £90.

Joshua :

If the boundary is determined in the above manner then following the than registry adjudicators determination, your title deeds and that of your neighbours, will be updated with precise measurements which are legally binding going forward.

Joshua :

unfortunately, the neighbours actions are likely designed to cause you maximum difficulty coming at a time when you wish to sell and presumably are in part at least calculated in the hope that you make simply concede in order to enable yourself to proceed without delay.

Joshua :

this is of course extremely frustrating to say the very least and the issue may cause you delay in being able to complete the sale of the property. this is poor behaviour on the part of your neighbours however it is not unlawful and therefore the resolution process to the issue is no different from a legal perspective because of your sale than it would be if you were not selling

JACUSTOMER-1d0stjwj- :

But would there not be a time limit on this ? Because as I have stated 2 previous neighbours lived in the house prior to these and no complaints and now after 9 years they have brought this up

Joshua :

time can be a basis for claiming land whether or not it is in fact owned by you by reference to the title deeds however the process is rather more involved than a determination boundary application and would normally be seen as a fallback position in the event that the determination of boundary goes against you. To explain...

Joshua :

based on what you say, your contention is that the boundary line is in the correct place and that this is reflected on your title deeds. therefore, if this is the case, you do not need to consider anything further such as how long you have occupied the land and so on because your initial contention at least is that you own the land by virtue of the evidence in your title deeds.

Joshua :

If your title deeds do not reflect your belief and / or the determination of boundary line goes against you so as to support your neighbours contention then at that stage, you may to consider a fallback argument that you own the land regardless by virtue of long occupation ( this is known as squatters rights historically). in order to demonstrate squatters rights ( the legal term is adverse possession) you need to demonstrate that you have occupied the land for 10 years or more under the mistaken but reasonable belief that you were the owner of it, the exact line of the boundary with this adjacent land had not been determined and the neighbours land to which the application relates was registered more than a year prior to the date of the application.

Joshua :

ideally, you would not need to pursue an application for squatters rights (adverse possession) by virtue of long occupation of the land on the basis that the determination of boundary will be decided in your favour however, it is a secondary fallback position available potentially to you.

Joshua :

Is there anything above I can clarify for you?

JACUSTOMER-1d0stjwj- :

So am I right in assuming that I let them pursue this through the courts at cost to them and if it is judged that the boundary fence has to be moved - I will move it - Even though as stated it has been there prior to us purchasing the property 16 years ago

JACUSTOMER-1d0stjwj- :

Also could I not recoup the cost of moving the fence back to the people whom I bought the property from ?

Joshua :

absolutely. This is one approach which if you were not wishing to sell the property could be very effective on the basis that on a practical level, the fences where you believe it should be and it is therefore for your neighbours to take steps if they wish to change this. The difficulty however is if you wish to sell the property because you would have to declare to your potential buyer the existence of a dispute relating to the boundary line and this can put off some buyers from purchasing all the to buyers negotiate and to reduce the price and so on. This is not a legal issue but simply the reality of life and it is likely this which your delightful neighbours are calculating will either result in it being more likely you will capitulate and giving entirely to the demands or perhaps more likely result in you taking steps to apply to determine the boundary saving them the hassle and some of the costs of doing so. There is nothing stopping you from simply disregarding the issue as you suggest that my suspicion will be that at least some potential buyers will be concerned about buying a property with a potential unresolved boundary dispute. The advice of your estate agents in this respect would be well worth obtaining

Joshua :

there would be no claim available in any event against the individuals that sold you the property unless you could point to a specific misrepresentation on their part

JACUSTOMER-1d0stjwj- :

Because it seems very unfair that if the boundary fence is in the incorrect position through no fault of my own that I am held liable

JACUSTOMER-1d0stjwj- :

or could be held liable

Joshua :

Did you erect the present fence panels are are they the panels that were there since before you moved in?

JACUSTOMER-1d0stjwj- :

So what you are saying is that if the neighbour wants the 12 inches - Tell him he can have it and let him move the fence at his cost ?

Joshua :

could you tell me if you erected the present fence panels or are they the panels that were there since before you moved in?

JACUSTOMER-1d0stjwj- :

The fence panels were renewed about 10 years ago - but they are the original posts - we have only carried out maintenance by repainting

Joshua :

thanks. In the event the boundary is determined in your neighbours favour, and I do not suggest for a moment that this is likely to be the case, then they could subsequently ask that you remove any property you maintain on that land ( notwithstanding that of course you also have a potential claim for adverse possession claim the land is your own regardless of the above). from what you say, the fence panels along to you as you put them up some 10 years ago however the posts may or may not long to you depending upon whether you accept that they do or not. If you deny that the posts are your property then notwithstanding all of the above, your neighbours would need to prove that they belonged to you in order to require you to remove them. however, as above, the question of removing the fence is jumping the gun at least twice as this only becomes irrelevant if you are unsuccessful in respect of a boundary determination and a claim for adverse possession.

Joshua :

if you are not terribly concerned about 12 inches of land other than the cost of removing and relocating the fence, then providing you do not believe it will have an adverse impact on your sale following disclosure of the issue to the sellers, then you may consider a response to the neighbours along the lines that if they believe they are entitled to the land, they can adduce evidence to support their claims and seek an application to determine the boundary line and relocating the fence at their cost. However do remember that you will need to consider any potential buyers as well as your own views in respect of any response

Joshua :

Does the above answer all your questions or is there anything I can clarify or help you with any further?

Joshua :

I hope that above is of some assistance. If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though.

Expert:  Nicola-mod replied 2 years ago.
Hello,

Just a quick reminder, there is an unrated answer waiting for you here from the Professional.

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Thank you,
Nicola

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