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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9356
Experience:  I have been practising for 30 years.
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A property we would like to buy (no. 22) has been encroached

Resolved Question:

A property we would like to buy (no. 22) has been encroached on by the neighbour (no. 24)(according to the boundary lines in the title deeds). The neighbor purchased no. 24 in 2012 with the fence in its current position (i.e. factual possession of some of the garden area and a corner of the actual building of no. 22). The current owner of no. 22 replaced the old fence but attached it in the same position (rather than reclaiming his property/land). What rights would we have as the new owner if we wanted to reclaim this area? (which is shown as the property of no. 22 on the title deeds). The owners of 24 have only been there for 4 years so not long enough to claim adverse possession. If we bought it knowing of the encroachment, would this effect our claim to the area in question? We would not be able to open out the end of our property as a few feet of it is currently fenced in with no. 24's property. Has the current owner of 22 done a disservice by replacing the fence in the same position? i.e. does it equate to acceptance or permission (he did this in 2014, no. 24 have since added decking up to the fence line).
Submitted: 10 months ago.
Category: Law
Expert:  F E Smith replied 10 months ago.

Putting the new fence on the incorrect boundary line is not any kind of acquiescence.

The fence needs to have been in the wrong place for 10 years before the neighbour is allowed to apply for adverse possession. That period will include any previous occupiers periods.

If that is not the case, you need to object in writing now, so that the clock stops while you argue over the boundary.

Can I clarify anything for you?

Customer: replied 10 months ago.
Great, thank you! So effectively it will be up to no.24 to prove that the fence had been in that position for the 6 years prior to their purchase in 2012. But if they could show proof and they put an adverse possession claim in then no.22 could potentially officially lose the area in question, however, part of the building of 22 is enclosed within this fence. Does that not account for anything? As the owners of 22 would not be able to make full use of their property and for example, extend or open out the rear onto the garden?
Expert:  F E Smith replied 10 months ago.

With regard to what number 24 have to prove, yes, that is correct.

Your understanding about number 22 is also correct.

It’s very difficult to answer the question about part of the building 22 being enclosed within the fence without seeing a plan. I you able to attach a plan or photograph or sketch?

Incidentally, why don’t you just get the seller to sort this for you or use the anomaly as a reason to reduce the price?

Customer: replied 10 months ago.
Thanks photo attached. No 22 is white building to right. Any idea roughly how much it would cost (court costs) if no 24 contested title deed boundary so we could get an idea of how much we could ask seller to drop price? Thanks so much for help
Expert:  F E Smith replied 10 months ago.

Thank you. I gather that the lattice fence on the right-hand side of the photograph should line up with the “washing pole” and the corner of the building extension on the white house. This appears to be next door’s house, and you are buying the White House because you say that the property you would like to buy has been encroached on by the neighbour and the house in the main photograph appears to have encroached upon the land of the White House. Please tell me if my understanding is not correct.

Assuming that is the situation, it’s quite a good guide as to where the boundary should have been. It’s very difficult to say how long-standing the fence has been.

You need to get the Land Registry title plan to see that the boundary does indeed lineup or doesn’t line up with the corner of the extension to the White House. If it doesn’t, and on the land registry plan it appears as it is on the ground, there is no dispute. If however on the land registry plan lines up with the corner of the White House extension, it then just comes down to the adverse possession issue.

A boundary dispute like this, or a claim for adverse possession which is contested could easily cost between £10,000 and £20,000. It seems unlikely that you would get the price reduced by that much.

Hence, you are really impractical terms looking at how much that land is worth

Can I clarify anything for you?

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Best wishes.


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