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Remus2004
Remus2004, Barrister
Category: Property Law
Satisfied Customers: 69369
Experience:  Over 5 years in practice.
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Hello, I purchased a property last Xmas which was set on

Customer Question

Hello,

I purchased a property last Xmas which was set on 1/2 acre of land. The land had been purchased from the neighbour and first registered under the new owners name in 2005. It was stated when purchasing the house that the boundary line to the right hand side of the property was inaccurate. It was finished it a straight line when it should have went at an angle to allow a driveway. (The existing driveway is in the front middle of the land and was used to build the house). The previous owner had to reinstate the correct boundary line which he did with posts and the mortgage lender was satisfied enough to let me purchase the property.

A few weeks after completing, the neighbour removed the correct boundary posts and proceeded to use the land again (to access the field which he owns behind). I went over to speak to him and showed him the land registry map which he said he would not contest. I informed in that in the future I would be putting the posts up and getting a quote to insert a driveway where it should be. Again no issue.

Tonight I employed and paid two builders to reinstate the boundary line back to the angle which it should be at and was stopped. The neighbour told me that he was not happy with that, it was his land which he has been using for years and that he didn't agree to a driveway being put in directly opposite his therefore he would take me to court to prevent it happening. I tried to explain to him that I have inherited this issue as I only purchased the property a few months ago and reminded him of our conversation about the land. However he felt that after thinking about it he was not happy with that agreement. He also added that should the boundary line go up he will bill me for the landfill on the existing land or get a digger and remove it before the boundary line goes up.

Any advice would be welcome!
Caroline
Submitted: 2 years ago.
Category: Property Law
Expert:  Remus2004 replied 2 years ago.
Thank you for your question. My name is Jo and I will try to help with this.

Please explain exactly who bought the land off who and why when the land was sold, the boundary was not put in the correct place?

How was the earlier dispute was resolved which resulted in the previous owner having to reinstate the correct boundary

Customer: replied 2 years ago.

The land was purchased by Stephen Heenan from John Farqhuar and planning permission granted to build a house. I purchased the house last Xmas along with the land. When the land was sold in 2005 Stephen Heenan built the house but did not assert authority over the small triangular piece of land that exists (this is meant to be the driveway agreed in the planning permission). When I bought the house the boundary line was changed to include this piece of land however upon completion John Farqhuar removed the posts. I was trying to put them back up again tonight and was stopped.


 


Caroline

Expert:  Remus2004 replied 2 years ago.
Thank you.

I would deal with everything in writing from now on.

Get your solicitor to write to the neighbour telling him that unless he reinstates the posts in the original position you will have no alternative but to take into court to ask the court to determine the position of the boundary and to grant an injunction to making move the boundary back to where it was.

You will also ask the court to make an adverse costs award against him.

There is a potential issue here and that is that if the original seller as occupied this land without consent and without objection for over 10 years, he may have acquired title to the land (or rather, retained title to the land) by adverse possession.

However that is something for him to raise as a defence.

I think there is probably going to be little point in exchanging lots of copious correspondence if the neighbour will not do what you are asking.

Can I clarify anything for you?

Jo
Customer: replied 2 years ago.

Hello, Thank you for your reply. If the land was sold in 2005 from John Farqhaur to Stephen Heenan does that not show that he did not occupy the land for 10 consecutive years as he sold it? Also I had checked online and in N. Ireland website it stated that adverse possession occurs after 12 years...just checking is this accurate?


 


Finally, John Farqhuar is stating that even if the boundary line is reinstated that he will oppose the planning permission which states that the driveway into the property is directly opposite his (which is not where it is currently as the existing entrance is a builders entrance), The house however has been built since 2006 and he did not object to planning permission when the plans including the driveway were submitted. Does he have any right to tell me that the driveway must be not be built opposite his when it's in the plans?


 


Thanks for you help....this was all a shock tonight!


Caroline

Expert:  Remus2004 replied 2 years ago.
Not necessarily.

He could have sold the land and continued to occupy it.

It is 10 years for registered land and 12 years for unregistered land.

He is at liberty to oppose any planning application of course but that comes down to the local authority.

If it's in the plans and they have been passed, then his only alternative is to go to court for judicial review and that is extremely expensive and very risky
Customer: replied 2 years ago.

Thanks for your answer. The land was not occupied by him as such, it is used to put horse waste on. Does the fact that Stephen Heenan put up posts to assert his authority over the land and these were removed by John Farqhuar have any bearing? If this is the case and he can sell the land and continue to use it then would the mortgage lender/ acting solictor for the purchase of the land and house not have picked up on this as this potentially meant the house should never have been allowed to be sold or purchased until the dispute settled? I really feel I have inherited a problem!


 


Caroline

Expert:  Remus2004 replied 2 years ago.
He doesn't have to physically occupy it but he just has to use it and that would be classed as using it.

You need to look at the enquiries raised by your solicitor and the replies to them because the seller is under a duty to disclose any disputes and if the seller has not disclosed this dispute from the past, you have a claim against him for substantial compensation/damages which could be as much as the value of the land or even the effect of the value of the land on the whole property and/or the cost of the litigation for dealing with it.

The continual up-and-down of the posts simply points to there being a substantial dispute over this piece of land.
Customer: replied 2 years ago.

But if he continued to use this land without the consent of the previous owner and dismantled the boundary line put up by him how could he have been stopped? Surely if that's the case lots of people could pull boundary lines down, use property and claim it as theirs? Sorry for all the questions I'm just not sure where my rights are in all of this.

Expert:  Remus2004 replied 2 years ago.
In order to defeat a claim for adverse possession, he does not have to be stopped, the rightful owner simply needs to raise an objection by sending a letter saying "please remove the fence because I object to you occupying that land"
Customer: replied 2 years ago.

So if the rightful owner who bought the property failed to do that since owning the land in 2005...and I'm looking to do it now 9 years later...does this count as an objection with the 10 year period? As he sold the land in 2005....and in 2014 I am objecting? Is that all I have to do? Object through my solicitor?

Expert:  Remus2004 replied 2 years ago.
The objection doesn't necessarily have to be through a solicitor but it carries more weight if it does.

I would certainly have a look at the solicitors file to see what the reply was to the enquiry about disputes.

That would be where I would go first.

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