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Hello. I am a lawyer with over 15 years experience. I will try to help you with this.
How long ago was it that your neighbour replaced part of the fence?
If you give me around 24 hours I would just like to double check dates with my wife (who is staying with a friend until tomorrow) and then I shall get back in touch. Thank you for your concern.
My neighbour installed the (encroaching) fence around the mid 1970's not in line with the fence he and I erected originally some 10 years previously. I have been aware of the encroachment for many years and, must say, turned something of a "blind eye". However it has always angered my wife and now, as the dreadful effects of her Alzheimer's Disease increases it has become an obsession (which I understand is normal for sufferers of this illness). Either way, I need to address the problem. Many thanks for your help.
Thankyou for that I have been in court all day and only just had a chance to look at it . I am still at court but will answer later this evening.
So what we have is a situation where your neighbour has had a fence line which leads to some of your garden being on his side of the fence since the 1970s. I think it is still the same neighbour and I assume we are discussing registered land. I assume that you are secure in your view of where the true boundary did lie. Did you discuss the fence line at the time and did you tell him that the original line marked the boundary and that you might want it back at some point. Did you give him permission to use your land? Did you say your fence has been built in the wrong place but I won’t make you take it down?
The key concept is adverse possession, which means that if your neighbour has used your land openly without permission, as if of right he may have been in adverse possession of your land. The old law on this was that if he did have adverse possession of your land for an uninterrupted period of 12 years he might be able to claim that the land was his.
A new law was passed regarding adverse possession of registered land which meant that for claims for adverse possession arising after 2002 it was much harder to acquire through adverse possession rights to land.
Unfortunately the old law was retained for those who claim to have acquired rights to land by adverse possession before October 2003.
There is therefore a risk that your neighbour could claim that the land is now his by reason adverse possession (effectively squatter’s rights).
If a dispute arose it’s resolution would likely hinge on whether he had been squatting or whether you had let him use it. Permission would be likely to negate his adverse possession claim. (If you give someone permission to use your land they are not squatters and therefor do not acquire squatter’s rights).
It is not clear if you know what your neighbour’s attitude is. The fence needs replacing after the storms. This may be a good time to remind him where the boundary runs and suggest the fence should follow that line. Your neighbour may agree in which case there will be no problem. If you have been neighbours a long time one would hope that they would value good neighbourly relations above grabbing a small piece of land. If not you could be in for a dispute. If a dispute does arise I wold strongly suggest that you instruct solicitors in the orthodox way. Acquisition of land through adverse possession is a notoriously difficult area of law which is very had for lay people to negotiate themselves and I have really just given a brief outline of the law as it relates to your issues.
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Thank you - That is most helpful. Your advice to talk to my neighbour seems the most prudent for the time being although I have a number of trepidations about his reaction. I am not sure if for such a small piece of land that makes no real or serious infringement on my property if it is worth any potential legal action (for the stress as much as the cost) or to have a difficult dispute with a neighbour of many years. My challenge is my wife's mental illness which is making her nothing short of obsessive about this matter. Many thanks once again for your help.