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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 69994
Experience:  Over 5 years in practice
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I have a question regarding a neighbour dispute

Customer Question

I have a question regarding a neighbour dispute
Submitted: 2 years ago.
Category: Law
Expert:  Jo C. replied 2 years ago.
Hi.
Thank you for your question. My name is ***** ***** I will try to help with this.
-Could you explain your situation a little more?
Customer: replied 2 years ago.

Of course,

So tryin to keep it as simple as possible:

My house is on a hill and so my neighbors to my left are higher than me and to the right are lower as the hill descends.

The previous dispute was with the neighbours to my left, i.e. above me.

At some point shortly after the houses were built (early 50'S) a previous owner of the property to my left filled the gap in to create a side passage for the house above me.

Approximately 6 - 8 years ago it became apparent that there was damp in the wall that had the infill / walkway next to it. At the time I had no house insurance so after appointing a solicitor and dealing with my neighbors insurance company and loss adjuster it was decided that the in fill was the issue.

Half of the infill was removed and it became apparent during this that the boundary wall was under the sideway and was now evident. Since the infill was removed I have had no real issues with the wall which shows what the problem was.

The final communication from the neighbor some 6 years ago was that he was aware the remaining infill, part of the sideway was dangerous and would need further work; nothing ever happened.

Now he has put the property on the market and it has gone under offer and I want to protect my interest. The plans of my house show my plot width and confirm that some of the infill and pathway was / is on my land.

My questions are as follows:

1 - What, if anything can I do to ensure / confirm that he declares the dispute on on the TA6 form that he completes for his solicitor?

2 - Should I be doing anything else at this point to protect my position in anticipation of a new owner as the gap must not be filled back in?

3 - Where do I stand with reclaiming the 'stolen land' if you will?

Thank you

Expert:  Jo C. replied 2 years ago.
Thank you. Sorry for the delay. This dropped off my question list.
I will answer your questions directly
1 tell him that there is an issue with the boundary between the properties and if it's not agreed that it is where you say it is, then he should refer that to his solicitor. Ask him to confirm. If he doesn't get back to you within a few days, tell him that if he doesn't then get back to you within the next couple of days you will refer the matter to the agent and his solicitor
2 point out to his solicitor that if any new owner fills this gap in, there is a potential claim in negligence for the damp and ask him to confirm that he advised the new buyers of that. When the new buyers moving, tell them the situation immediately
3 if the land which has been adversely possessed was in essence occupied by the neighbour for 10 years or more without consent or objection they can actually apply to have it registered in their name under the doctrine of adverse possession. The way of dealing with this is in the same way that you dealt with 1 and 2 above by asking the current seller to confirm the boundary in the position which has been discovered. The reason for doing it now is that they are more likely to agree now otherwise it could cause problems with their sale.
Can I clarify anything for you?
Jo
Customer: replied 2 years ago.

Thank you for your answer,

Can I ask:

1 - That is clear. Would a report from a boundary expert / expert witness assist.

2 - Understood, but I f I cannot get hold of his solicitor detials how do I approach this.

3 - Does the 10 year rule apply where they have been changes of ownership or is it only 10 years if the same owner?

Thank you

Expert:  Jo C. replied 2 years ago.
I think a report from a boundary expert witness is essential if it gets to court but that will cost about £600 plus VAT. In the short term, a simple letter would probably do the trick
The solicitors details should be on the sales details from the agent or the agent should give them to you. If they are not, and the agent will not give them to you, make a note of this so that you can then raise the issue with the new buyer.
The 10 year rule applies regardless of how many owners there have been during that period.
Customer: replied 2 years ago.

Thank you for this,

If the infill is causing a detriment to my property, to what extent does this counteract the 10 year rule?

Kind Regards

Alex

Expert:  Jo C. replied 2 years ago.
For the purposes of damage to your property, the 10 year rule is not relevant. They can actually own the property outright and if the infill causes damage to your property, they are still liable in common law negligence.
They are not liable if it was built like that but they are liable if they created that problem.
Any subsequent buyer inherits the problems created by their predecessor
Customer: replied 2 years ago.

Thank you,

I have a signed witness statement from a now deceased previous neighbour confirming the houses were not built as they are now.

Is there anything else I can do apart from the above?

Thank you

Expert:  Jo C. replied 2 years ago.
Assuming that the current owner has agreed the situation and it is resolved for now, then at this stage all you need to do extra is gather as much evidence as you can along with plans and photographs.
What you need to do is make sure that it does not become an issue again and in that respect, signed photographs and plans from the neighbour indicating where the boundary is would be ideal..
Jo C., Barrister
Category: Law
Satisfied Customers: 69994
Experience: Over 5 years in practice
Jo C. and other Law Specialists are ready to help you
Customer: replied 2 years ago.

Apologies for the delay,

I have a final question for you in relation to a point you made in your original e-mail, i have copied it below:

if the land which has been adversely possessed was in essence occupied by the neighbour for 10 years or more without consent or objection they can actually apply to have it registered in their name under the doctrine of adverse possession.

Can I ask how I would ascertain if the neighbor has attempted to do the above?

Thank you

Expert:  Jo C. replied 2 years ago.
Sorry, you mean how would you know if he was claiming adverse possession?
I am happy to continue with this but please leave feedback for my answer.
Customer: replied 2 years ago.
All done,
Yes how would I know if he was claiming adverse possession?
Alex
Expert:  Jo C. replied 2 years ago.
If the land is currently registered to you, the Land Registry will advise you of any applications to allow you to object
Customer: replied 2 years ago.

Thank you for confirming this,

I would like to add thatupon reviewingall historic correspondanceover theweekend it has transpired that there was no dispute regarding the boundary.

The infill was part removed as already explained which exposed the original boundary wall and this has never been disputed.

In your expert opinion how does this change things and does it assist me in anyway?

Thank you

Expert:  Jo C. replied 2 years ago.
All the neighbour has to do is agree that the original boundary is that which has now been exposed, and that then puts an end to the boundary issue.
It may be that it's already been agreed in correspondence.
The only issue then is that of the damage caused by the infill
Customer: replied 2 years ago.

Thank you,

Surely if this was 6 years ago and the boundary was never disputed is that necessary?

If the boundary ties in with the plans and there has been no dispute why would an agreement be necessary?

Thank you

Expert:  Jo C. replied 2 years ago.
If there has never been a dispute over the boundary, then you don't need anything. However it appears that the neighbour filled the gap to create a side passage. As long as it is agreed that the side passage always half belong to you and half belonged to the neighbour, there is no problem at all with that and the only issue then is the infill causing the damp
Customer: replied 2 years ago.

Agreed,

As an aside it was not filled in by the current owner, but a previous owner probably at least 40 - 50 years ago. I assume in this case there really isn;t an issue?

Thank you

Expert:  Jo C. replied 2 years ago.
When someone buys a property they inherit the problems.
What seems to have happened of course is that the previous owner has trespassed over the boundary and filled in on your side causing the damp
Customer: replied 2 years ago.

Thank you for your help,

I have another issue in relation to this; I assume I will need pay another fee?

Please confirm?

Expert:  Jo C. replied 2 years ago.
If it isn't related then you would need to ask another question I'm afraid.
Customer: replied 2 years ago.

Well it is to do with this matter,

Basically at some point a side gate has been installed for the neighbouring property, this has been there for many years!

However it is preventing me accessing my land / side wall; what steps can I take to have it removed?

Let me know if another fee is due in respect of the above,

Thank you

Expert:  Jo C. replied 2 years ago.
If the gate is obstructing your right-of-way you can have it removed.
If he will not remove it voluntarily, then you are faced with making a court application for an injunction to make him remove it
If it is only preventing you carrying out maintenance, you can have it removed temporarily.
If it trespasses onto your land and has not done so for at least 20 years, you can have the trespass removed.
If it has been in place for longer than 20 years the neighbour can claim an easement for the gate to "oversail” your land but nonetheless, it cannot cause an obstruction

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