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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 26069
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I WANT TO ACQUIRE THE GARDEN THAT I HAVE BEEN USING AND MAINTAINING

Resolved Question:

I WANT TO ACQUIRE THE GARDEN THAT I HAVE BEEN USING AND MAINTAINING SINCE 2001. I BELIEVE IT IS CALLED ADVERSE POSSESSION. I LIVE IN A LEASEHOLD FLAT WITH MY LEASE I OWN ONE PART OF THE SPACE AND THE OTHER LEASEHOLDER OWNS THE OTHER PART. IT IS NOT SEPERATED IN ANY WAY AND I HAVE HAD A SHED ON THE OTHER SIDE FOR AT LEAST 10 YEARS AND HAVE BEEN USING THE GARDEN SINCE I MOVED IN IN 2001.

DO I NEED A SOLICITOR TO ACT ON MY BEHALF. I BELIEVE IT IS AN ADV1 FORM
Submitted: 3 years ago.
Category: Property Law
Expert:  Joshua replied 3 years ago.

Joshua :

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.

Joshua :

May I clarify with you that this is the other half of the garden you wish to claim please - i.e. what would be your neighbours side?

Customer:

yes thats right

Joshua :

Thanks. Does your neighbour have physical access to the land?

Customer:

he hasnt maintained or used it at all and rents out his property

Customer:

yes he would need to come in through the side entrance of property and past my entrance to my home

Joshua :

Thanks - can he physically do that or is the side entrace locked so he cannot access the same?

Customer:

no its not locked

Customer:

so if he wanted to he could - he just doesnt

Joshua :

Thanks. Lastly would I be correct to assume the land is registered at H M Land Registry?

Customer:

I would presume so. Im guessing it is outlined on his lease as is my part

Customer:

But as part of lease he is supposed to maintain the space

Joshua :

Thanks. If the land is registered, a new regime was introduced by the Land Registration Act in 2002 which unfortunately has made claiming land by adverse possession which is registered much harder.

Customer:

in what way?

Joshua :

If you were to make such an application for possession of registered land you need to show 10 years of exclusive occupation where you have excluded all others. I am concerned as to whether you could show this as from what you say the neighbour has access but chooses not to use it. You typically need to show you have excluded all others in order to raise a claim in the first place. Notwithstanding this point if you could show that you had excluded all others, all the registered owner need do is object to your application and your application will automatically fail unless you can show one of the following applies:

Joshua :

The first condition is that it would be unconscionable because of an estoppel for the owner to seek to dispossess you of the land and the circumstances are such that you ought to be registered as the proprietor. For example that the owner advised you you could have the land


Joshua :

The second condition is that you are for some reason entitled to be registered as the proprietor - for example you inherited the property - this is unlikely to apply

Joshua :

The third condition is that you have been in adverse possession of land adjacent to yours for at least 10 years under the mistaken but reasonable belief that you were the owner of it, the exact line of the boundary with this adjacent land has not been determined and the estate to which the application relates was registered more than a year prior to the date of the application.

Joshua :

Based on what you say you would appear to have two major hurdles. The first would be that I am not certain you can show that you have excluded your neighbour from the land and this is a necessary ingredient in order to bring the application. If you can get over this then if the neighbour objects to your application the only likely condition you could claim under would be the third condition - i.e. that you have been in adverse possession of land adjacent to yours for at least 10 years under the mistaken but reasonable belief that you were the owner of it

Customer:

when i first moved in - the whole garden was all covered waist high in weeds there was a fallen dividing fence. He did say use it. hence the fence was removed and I did begin to use it

Joshua :

I am not clear as to whether you could reasonably claim that you genuinely though it was yours. If you can and you can overcome the above hurdle of showing that you have excluded your neighbour and others from the land and treated it as your own in this way there is the opportunity for a claim.

Customer:

so I would need to get a lockeable gate

Joshua :

That would be ideal or remove the gate altogether.

Joshua :

Would you like the forms you require to make an adverse possession claim if you decide to proceed?

Customer:

Yes please....how does removing the gate help? thats to the side of the house...and not linked to any of the gardens...( i could not do this as my dog would get out on main road) I have applied to purchase the freehold of the property so maybe this would put me in better stead

Customer:

The gate leads to the path to access my front door and if followed on to the back of the house

Joshua :

Certainly. Re the gate - in order to raise an adverse possession claim you need to show that you have excluded all others from the land and treated it as your own. This requires typically evidence of a boundary which enables you to control access by third parties. The existence of a gate which the neighbour can use to access his land could be fatal to your claim. The Land Registry will often send a surveyor to inspect.

Joshua :

www.landregistry.gov.uk/_media/downloads/forms/ADV1.pdf‎

Joshua :

The above is the form you would need to make the application.

Joshua :

Is there anything above I can clarify for you any further?

Joshua :

Does the above answer all your questions or is there anything I can clarify or help with any further?

Customer:

i have definately done that- i have erected a lagre shed that as been there for at least 10 years and there is other storage and belongings on his side, including my washing line..

Customer:

ok thanks for your help

Joshua :

A pleasure. If I can assist any further as the situation develops please do no hesitate to let me know.

Joshua and other Property Law Specialists are ready to help you