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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.
Have you in practice enjoyed exclusive possession of the area of land in question please?
Is there anything in writing between you and your great aunt or has everything been verbally agreed?
How many years have you enjoyed grazing rights?
It has been a long standing verbal agreement. I have been using the field for hay for 15+ years and grazing it for at least 7 years. We have a piece of paper signed by her in Feb 2009 which agrees to us putting up some fencing on the field and putting in some drainage.
Many thanks and lastly for the avoidance of doubt no money has ever been exchange between you and your GA previously?
No I haven't paid to use the field or a building of hers to store hay & straw.
Thanks. Based on what you say you will have a licence in respect of the field rather than a tenancy because you have not paid your aunt anything to use the field but accept that you occupy the same with her permission rather than as of right.
A licence provides that your GA could ask you to leave at any point providing you only with reasonable notice to do so.
Yes I appreciate I am not a tenant, but does her sister have rights to start charging rent and if she does - what rights would I then have as a tenant? Should I get a tenancy agreement ?
The reasons behind the attorneys actions I suspect may arise from a her being advised by a solicitor or because of some knowledge of land law and farm business tenancy law herself.
As power of attorney does she have the right to sell land or property ?
As a matter of best practice a licence should include a written licence agreement, include a licence fee and be for no more than 364 days per year - i.e. less a day to prevent any claim of exclusive possession. A licence does not have to have all these features to be a licence but as a matter of best practice this is what a solicitor would typically strive for. She may have been advised of the suggestion to levy a charge so as to make it easier to determine what consitutes reasonable notice if she wanted to ask you to leave - where money is paid, reasonable notice is typically determined to be equivalent to the intervals of payment.
In truth the payment in these circumstances changes little in practice other than the money coming out of your pocket. You could approach the attorney and complain that you have never been charged before and you do not think your GA would want to charge you but if the amount is low you may not be concerned about the money aspectin and of itself.
An attorney cannot sell your GA's land or property without your GA consent unless she has a court order from the Court of Protection. The court will only grant an order if they can be convinced that the sale is in your GA's best interests.
Sorry I obviously sent as you were typing ! I don't trust the attorney - She has connections to a solicitor through her family. I also feel the very low fee asked is a trick as she doesn't like me using the field and buildings !! I am concerned that if I paid this low fee she could use it against me in some way.
The invoice is for the period 01/01/14 - 01/12/14 which I consider to be very strange dates ! If I paid would this then mean she would have to give me 11 months notice ?
Based on what you say above I cannot see how. It may be that she is not exactly sure how long you have occupied the field and I could concieve of a discussion with a solicitor whereby she tells him that a great nephew is occupying part of a field and has fenced it off and she is not she is not sure how long you have been there, this sets alarm bells off in the solicitors head whereby he tells her that if you have been there fore more than 12 years and claimed you had occupied the land without seeking permission from your GA you could seek to claim adverse possession of the land and to guard against this possibility she has been advised to try to obtain some payment from you. Payment by you is very strong evidence of a licence and would make it very difficult for you to claim adverse possession - of course here you have no intention of doing so and accept that you already occupy under a licence.
Obviously I cannot second guess her motives and the above is merely supposition on my part but I could quite conceive of the above advice being given. If I were acting for the attorney I would be very uncomfortable in your continued occupation of the land without formal documentation and would be strongly advocating a nominal licence fee and once that is agreed, ideally asking you to sign a formal licence agreement to regularise matters.
That would make a lot of sense as she knows that myself and my father have been using the land and buildings for some time. What is adverse possession ?
What is the difference between a licence and a tenancy agreement ?
Adverse possession can be achieved if you can show that (in the case of registed land) that for 10 years prior to 2003 you and/or your father between you have occupied the land exclusively for 10 years or more. After 2003 the rules changed for registered land which make adverse possession much more difficult but still possible if you can show for example that your great aunt had promised you the land for example or for some reason were otherwise entitled to it. If you can satisfy the requirements for adverse possession it is possible to claim it as your own. There is always a danger with undocumented licences from the landowners point of view that an occupier could attempt such a claim.
The difference between a licence and a tenancy principally is that a tenancy grants you exclusive occupation of the land.
If I were to pay would you therefore recommend I ask for a tenancy agreement as I have for another piece of pasture land that I rent?
Can she as power of attorney - demand I leave if I don't pay ?
If there were any possibility that you may wish to sustain a claim for adverse possession then you should unreservedly not pay. If you have no intention of this then based on what you say I cannot see any real difficulty in your agreeing to pay save that you may find it results in a slippery slope whereby the demand increases to a market level next year. To guard against this you could consider reverting to her on a WITHOUT PREJUDICE basis advising that you are considering her request but before you can respond you would like to have the opportunity to consider whether to enter into a tenancy for the land for a minimum period of x years in order that you can consdier your position fully. Or words to this effect.
If you were to obtain a tenancy she could not evict you before the minimum period has expired. However take care not to accept that you presently have a licence either directly or indirectly in any correspondence unless you are content to accept that you do as this could prejudice any claim you later decided to pursue in terms of adverse possession.
As attorney she can ask you to leave but not if this is against your GA's wishes. Also consider if she is unsure as to what your status is in terms of adverse possession and so on she is unlikely to press the point at least until the position is regularised when she can be more sure of her rights.
I am sure my great aunt is happy for me to use the land and buildings as she has let me use one shed for over 30 years as a stable and storage. If I got my great aunt to sign something to say she agrees to me using the land would this help my position at all ?
Does she still have mental capacity?
She has been diagnosed with dementia although I am not sure at what level ?
Providing she can still understand what she is being asked to do then her wishes overrule the attorney and if she were to give you something signed that for example said you could remain there fore her life, or gave you the land then this would bind and the attorney could not overule it unless she could show that your GA did not understand what it was she was signing. This would depend on the extent of her condition. If mild at this stage she may be perfectly capable of making such a decision.
Is there anything above I can clarify for you?
I think you have confirmed my suspicions that the attorney is trying to formalise an arrangement. Can you just confirm that she has not got the power to enforce payment if it is against my aunts wishes ?
Correct. The Mental Capacity Act provides conclusively that providing the donor has capacity to make a decision at the time it is made the wishes of a donor will override and bind an attorney whether they attorney disagrees with the wishes or not.
Does the above answer all your questions or is there anything I can clarify or help you with any further?
I think I now have a much clearer picture of the situation thank you.
A pleasure. I hope you are able to reach an agreement with your great aunt that is to both of your satisfaction.
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