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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9031
Experience:  I have been practising for 30 years.
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My neighbour has built a fence on the borner of land that is

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My neighbour has built a fence on the borner of land that is being disputed.
| |___________<--Original Fence<__HIS GARDEN I have photos of fence
| | |<-Wall MY GARDEN
| | DISPUTED |
| | AREA \
| | | <-- MY LARGE DOOR to get nto my garden
| | /
| | |
| |___________ <_NEW FENCE touching my house
| | XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX <-- X is boundary of my house
The disputed area is about the size of 2 parking spaces. The title deed of the disputed area has red as being his boundary after my land was split into 2 to form 2 separate properties. However, myself the owner of the 'my house' used it exclusively in the past before the new owners erected a wall in 2007. I have been away for a number of years to come back to seeing this new fence and gate erected. My house had been heavily vandalised so I have been concentrating on that,k but I realise due to legal time constraints i need to look at how to resolve the fence issue.
Please can you advise me what is my right, and what is the process to follow (i presume there's a land registriy process to follow). and what do you think my rights are of 1) access, and 2) removing the fence back to his original fence, 3) getting the land registry boundary redrawn.
Mike:***********
Submitted: 5 months ago.
Category: Law
Expert:  F E Smith replied 5 months ago.

In order for the neighbour to claim the piece of land which they have fenced off, they have to have occupied it without consent and without objection and not in secret for more than 10 years if it is registered at the land Registry.

What you need to do now is write to them (or better still get a solicitor to write to them) telling them to put the fence back in its original position failing which will make an application to court to make them do it.

They are going to have to prove to the land tribunal (if it gets that far) that they have the necessary period of occupation.

If this fence now restrict your access you can threaten an emergency application for an injunction to make them give you access pending the resolution of the boundary dispute.

If you simply remove the fence they could potentially go to the police and claim criminal damage. Some police forces will investigate and others will say it’s a civil matter so removing the fence is not a route that it’s probably a good idea following.

If you want to get the land registry boundary corrected (you don’t say how long it’s been in this position) then you need to either agree with the neighbour or make an application to court to have the boundary determined by a judge. In support of the application you are going to need expert testimony from a boundary surveyor.

Can I clarify anything else for you?

It’s an important part of the process by which experts get paid.

We can still exchange emails.

Best wishes.

FES.

Customer: replied 5 months ago.
I think the land registry boundary has been in existence for many years, I think as long as 50 or so years (Does this make a difference?).. However, its ludicrous to have the boundary there because of my large wide green door is there. Also in a regular basis I have to have scaffolding around the property which has to go into this disputed area to work on the house (roof work, guttering work painting, and re rendering). although I own the driveway all the way up to their property (they have permission and I have a 'moyen', which I think entitles me to claim from them for the repair of the road? and i can access my house form all other areas, i have a green door and entrance to the back part of the garden from this disputed area. The neighbour tried to block it up the other day and i told him no, that is a door, i'm allowed to work through as much as i like through that door. i have been excercising my right through the door every few days. My email is***@******.***, my phone number is ***** Please categorise what I should do. ? And could you do a letter. ?
Expert:  F E Smith replied 5 months ago.

If the boundary on the land registry plan has been there for 50 years but the reality on the ground is somewhat different, then the 10 year rule applies and it would be necessary for you to apply to have the piece of land which is shown on the plan as belonging to the neighbour, registered as yours.

We can’t write letters on letterhead we can give you the wording of letters for you to write. You might want to do is write your own letter, letters have the details, and we can suggest changes.

If you can attach a plan with some explanatory notes, the situation would become clearer.

Customer: replied 5 months ago.
Hi i'm trying to get the plan or photo to show you to get a final answer on my question. sorry but yesterday I had to go to hospital. I apparently have a wisdom tooth pushing out my molar and I was the previous night yesterday and lsat night in an amazing amount of pain. I'll get home tonight and get the photo on to here to finish the question. Mike.
Expert:  F E Smith replied 4 months ago.

That sounds painful. When you are ready is fine.

Customer: replied 4 months ago.
Apologies hopefully this will be the last call here... . my apologies for not getting back to you but i had to find the info and also get back to work. i own haylings, and the other person owns the longhouse. the disputeddoor.jpg is a picture from 2007 when there was no gate on and fence on the right side next to my house and is matcing their exact permiter as in the lonnghouse.jpeg. infortunately it is touching my house and as you can see in the disputeddoor.jpg the green door goes through to my back garden. thre is no door at the moment, just a straight open space. please advise me what my chances are and process. If it requires you to be more involved please say so. Thankyou. Michael:***********
Customer: replied 4 months ago.
finally my letter to the owner of the long house ( a councillor ) ...
Expert:  F E Smith replied 4 months ago.

We would appear to have been getting there but I can’t see where the original fence is or where the new fence is. On the letter you sent the neighbour says that “For clarification the area of this is marked in Purple” although there is nothing marked in purple on the thumbnail sketches. You also refer to a purple rectangle which is similarly not shown on the sketches.

It would be useful if on those sketches you marked the original fence, the gate and the new fence.

Customer: replied 4 months ago.
I am editing a photo to give an outline. we can then talk about the letter, i'm happy for a telephone conversation for this.
i understand you are helping a lot with this. i should have the additional photo by end of tomorrow.
Customer: replied 4 months ago.
Ok, I have added a PDF file of the area, i think this wil help, and i'll add another picture from my bedroom window which shows the gate ont he left, and the trees ont eh right where the origiinal fence was, my old wall with my entrance to my back garden is also here. the area in the picture from m window shows half of the disputed area that i was using on a regular basis, the other half where you see the fence which is open in the picture, goes to the main park and he has now put a permitter fence around the complete area in the last week or two.
Customer: replied 4 months ago.
Please text me 1st before calling me, i will be back hoem about 5pm. but i will be available from tomorrow (Tuesday) from the morning after 10am. Thankyou. Mike - I can then go through the pictures with you .
Expert:  F E Smith replied 4 months ago.

I was off-line all day yesterday. I see that you would like a telephone call. If you can let me know what time is convenient today for you, I will endeavour to call around that time.

Best wishes.

F E Smith, Advocate
Category: Law
Satisfied Customers: 9031
Experience: I have been practising for 30 years.
F E Smith and other Law Specialists are ready to help you
Customer: replied 4 months ago.
Can you confirm you can identif the borders and fence issues in the last pics and pdf document i sent. ? if so, you cn call me at : 9;30 or 12:00
Expert:  F E Smith replied 4 months ago.

WORDS AS PROMISED

I have now reviewed Land Registry Plans and I have reproduced these below.

I have also taken advice on the same and although I was originally of the opinion that the boundaries were incorrect, I have now concluded that the boundaries shown on the title plan are indeed correct.

However you will be aware that both we and our predecessors have used the area edged in COLOUR jointly for parking and for all uses associated with the adjacent properties for a considerable period of years, probably more than 30 or 40 and possibly since the properties were built.

The occupiers of Haylings have also used the entrance to access the area edged in COLOUR for the same period of time.

If you look at the photograph of the walls adjacent to the entrance, you can see that they are of a considerable age which would support the contention that the entrance has been used for many years, alluded to in the previous paragraph.

Hence, I am of the opinion (and my advice confirms) that notwithstanding any provision (or not) in the title deeds, I am entitled to a prescriptive easement under the provisions of the Prescription Act 1832 in that the use of the area edged in COLOUR and the entrance have been used by me and my predecessors for a period exceeding 20 years and have done so without consent or objection and not in secret.

What I would suggest is that we formalise the Easement by deed and have the benefit and the burden of this registered against the title of both properties. I would be willing to pay the reasonable legal costs and disbursements in respect of doing this which should then draw a line under the matter and facilitate any future dealings of the properties because of course, until such time as this matter is resolved, it would not be possible to sell either property with the dispute extant as it would be discloseable to any buyer.

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