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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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UK England If there has been a dispute on right of access

Customer Question

UK England
If there has been a dispute on right of access way. The neighbour has torn up road and erected fencing on the property. It went to mediation and now dispute is over and have more rights over land not to erect fence, access all parts of land, which is removed and now got 100% maintenance of land. If the owner no longer uses the land and we legally maintain the land is it possible to gain adverse or factual possession on the land?
Submitted: 3 years ago.
Category: Property Law
Expert:  Joshua replied 3 years ago.

Joshua :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Joshua :

Was the dispute between you and your neighbour please?

Joshua :

If that is correct do I understand correctly that neither of you actually own the land?

Joshua :

If so do you know who does own the land? Is the title registered at H M Land Registry?

JACUSTOMER-8vvqypvf- :

No the neighbour owns the land

JACUSTOMER-8vvqypvf- :

but we have access rights over it

Joshua :

Thanks so the neighbour has since the dispute effectively abandoned it and you use and maintain it?

JACUSTOMER-8vvqypvf- :

the dispute was he restriced access onto the road and he fenced up. Suveyors came and deemed him to trespass

JACUSTOMER-8vvqypvf- :

Well it went to mediation

JACUSTOMER-8vvqypvf- :

but it was productive

JACUSTOMER-8vvqypvf- :

- Allows us to enter at any point of the land

JACUSTOMER-8vvqypvf- :

- Will allow us to maintain the road at 100% cost

JACUSTOMER-8vvqypvf- :

-trim the hedge verically

JACUSTOMER-8vvqypvf- :

this will all be tied into the house deeds

Joshua :

Thanks so the neighbour has since the dispute effectively abandoned it and you use and maintain it now?

JACUSTOMER-8vvqypvf- :

well the dispute is now recitifed as the deeds have been changed to reflect the mediation agreement

JACUSTOMER-8vvqypvf- :

we are the only people to use the land and maintain it and legally have to

JACUSTOMER-8vvqypvf- :

100%

JACUSTOMER-8vvqypvf- :

?

JACUSTOMER-8vvqypvf- :

Hi joshua I need to leave now, can you e-mail me your answer

Joshua :

Thanks. Is the land registered at H M Land Registry? Is it now enclosed with fences you maintain so that the neighbour cannot enter onto it?

JACUSTOMER-8vvqypvf- :

there are no fences as they blocked our access

Joshua :

Thanks. And is it registered to your knowledge?

JACUSTOMER-8vvqypvf- :

yes

JACUSTOMER-8vvqypvf- :

I have to go now

JACUSTOMER-8vvqypvf- :

can I leave this with you

Joshua :

unfortunately, the land registration act 2002 has made claiming adverse possession of registered land very difficult. In order to attempt to claim, you need to be able to show that you have treated the land is your own and excluded all other parties from it. The best way of doing so is by showing that the land has been fenced off in some way either using fences or hedges and so on.

Joshua :

However, even if you can show the above , if the land is registered, the land Registry will serve a notice upon the registered owner. All he need do is object to your application being registered as the owner and your application will fail. The position is different if the land is unregistered.

Joshua :

Accordingly, if the land is nto enclosed by your fences and is registered at the land Registry I very much regret that you are unlikely to be successful in attempting to claim ownership of the land even if you could demonstrate the above unless the registered owner fails to object to your application in which case you could be registered as a possessory owner.

Joshua :

Is there anything above I can clarify for you?

JACUSTOMER-8vvqypvf- : Why would an objection always fail? Would they not look at case by case? We have factual possession really?
Joshua :

If the neighbour objects that is all he has to do for the application to fail if it is registered.

Joshua :

The reason is this is what is provided for in the Land Registration Act 2002 which greatly changed the law in relation to adverse possession.

Joshua :

Is there anything above I can clarify or assist you with any further?

JACUSTOMER-8vvqypvf- : Ok what about factual possession though? Also intention to posess there are some additional clauses to this act!
Joshua :

You are quite right. Unfortunatly however if you have not enclosed the land you will fall at the first hurdle before considering the other provisions. However as above you are correct there are other requirements in addition to this. You must show you have factual possession of the land, you have the necessary intention to possess the land, and your possession is without the owner’s consent.

For factual possession the land registry provides that where the land was previously open ground, fencing is strong evidence of factual possession, but it is neither indispensable nor conclusive. In Powell v McFarlane, is was decided that "Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed. Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so."

Joshua :

Can I help you with anything else on the above?

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