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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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There is a small patch of land at the bottom of our garden

Resolved Question:

There is a small patch of land at the bottom of our garden across a stream with a bridge connecting the garden to the small patch of land. The local farmer has had a fence in place beyond the patch of land for at least 14 years (10 years whilst we have owned the property and 4 years with the previous owners). According to land registry plans we have noticed that it looks as though the small patch of land is not owned by our property although at the time of purchase this was never picked up. We would now like to replace the bridge with decking and extend up to the Farmers Fence. Are we Ok to do this on the basis that to our knowledge this small patch of land has been mainteained for the last 14 years by ourselves and the previous owners?
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 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 :

may I ask if you have carried out something called an index map search against the area of land with the land Registry to date please?

Joshua :

From what I understand, is the land physically enclosed within your boundaries - albeit there is a question as to legal ownership?

Customer:

The small patch of land across the stream is physically enclosed within our boundary and has been for at least 14 years. We have done a map search with the land registry and this shows the boundary of our property only goes up to the stream which runs at the end of our garden and does not go onto the other side of the stream which is the small patch of land in question.

Joshua :

thank you for the above. Does the index map search confirm that the area of land is unregistered with the land registry?

Customer: The land is registered as belonging to the farmer but as previously stated the boundary indicated by the existing fence indicates that the land is within our boundary
Joshua :

Thank you.

Joshua :

If you were to proceed without the farmers consent you would be looking at effectively making an adverse possession claim in respecgt of the land. The law relating to adverse possession has changed and tightened since the introduction of the Land Registration Act 2002; Since the introduction of that legislation, it has been very difficult to adversely possess registered land. If the land is unregistered the position is simpler. You need to show 12 years of exclusive occupation of the land with unregistered land in order to claim adverse possession of it.

Joshua :

For registered land unfortunately the position is more difficult. If you were to make such an application for possession of registered land you need to show 10 years of exclusive occupation but all the registered owner need do is object to your application and your application will automatically fail unless you can show one of the following applies:

Joshua :

The first condition is that it would be unconscionable because of an estoppel for the owner to seek to dispossess you of the land and the circumstances are such that you ought to be registered as the proprietor. For example that the owner advised you you could have the land


Joshua :

The second condition is that you are for some reason entitled to be registered as the proprietor - for example you inherited the property - this is unlikely to apply

Joshua :

The third condition is that you have been in adverse possession of land adjacent to yours for at least 10 years under the mistaken but reasonable belief that you were the owner of it, the exact line of the boundary with this adjacent land has not been determined and the estate to which the application relates was registered more than a year prior to the date of the application.

Joshua :

it is the third condition based upon what you say that you would need to proceed upon

Joshua :

if you can believe you may be able to demonstrate that you have fulfilled the third condition which based upon what you say

Joshua :

if you consider that you have a basis to claim adverse possession under the third condition above, you would need to complete an adverse possession form and send it to the land registry:

Joshua :

http://www.landregistry.gov.uk/_media/downloads/forms/ADV1.pdf

Joshua :

you may decide to proceed with the application yourself though all things being equal, it is normally a good idea to ask a solicitor to assist you with the application to ensure its best chance of success of the application is not entirely straightforward. However, on the basis you can demonstrate that the area of land has been enclosed within your boundaries from the point you purchase the property and that you have maintained it as your own under the possible mistaken belief that it belonged to you, the application would appear to have merit

Joshua :

is there anything above I can clarify for you any further?

Customer: No thats fine
Customer: Thankyou
Joshua :

A pleasure. If I can assist any further as the situation develops please do not hesitate to revert to me

Joshua :

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

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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