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Remus2004
Remus2004, Barrister
Category: Property Law
Satisfied Customers: 70526
Experience:  Over 5 years in practice.
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Our boundary fence is clearly inside our plot and could not

Customer Question

Our boundary fence is clearly inside our plot and could not be errected along LR boundary line because of trees. Boundary is clearly wrong Neighbours have now removed trees but are refusing us permission to put fence on correct boundary because of 12 year rule. Trees were removed without PP despite being in a conservation area.
Submitted: 3 years ago.
Category: Property Law
Expert:  Remus2004 replied 3 years ago.
Thank you for your question. My name is ***** ***** I will try to help with this.
How can I help with this please?
Customer: replied 3 years ago.

Jo,

Thanks for your offer of help.

A detailed survey as part of our self build project has identified that current boundary fence is clearly inside our boundary enclosing a triangular piece of land C. 10m long to a point at 1 end and c. 1.5m wide at the other.

Trying to establish from previous owner when fence was errected and if, as our belief, it ended up in current position due to established conifers on the actual boundary line that have now been removed.

Our legal question is whether the 12 year rule applies and we have no grounds to put a new fence along the correct line unless our neighbour agrees. I can send you a PDF plan showing how we have established the approximate line. The fence is clearly in the wrong position as our neighbours garden is shown on both their and our LR entry as ending in a point, whereas the current fence ends in a 1.5m squared off position.

Thanks

JW

Expert:  Remus2004 replied 3 years ago.
They can only claim adverse possession of this land if they have treated it as their own for more than 10 years if it was registered at the land registry and 12 years if it's not registered at the land registry.
They will have to make a claim for adverse possession and if they cannot prove 10 years use, the boundary will be determined where it originally was.
A letter from a solicitor threatening to take them to court to establish the boundary in the old position will either make them agree to put it on the boundary or force them to make an application for adverse possession.
Can I clarify anything for you?
Jo
Remus2004 and 3 other Property Law Specialists are ready to help you
Customer: replied 3 years ago.

Perhaps you could clarify 'use of the land'?

The land is a point at the end of their garden and gives them no particular access rights and until recently was taken up by overgrown connifers.

Could we argue the trees were the actual boundary and the position (and age) of the fence is irrelevant as grounds for rejecting the adverse possession claim?

Thanks for your suggested solicitors letter approach.

JW

Expert:  Remus2004 replied 3 years ago.
It is whether they have used the land and "treated it as their own" without consent objection their permission for that period of time.

It's being fenced off would normally be consistent with treating it as their own.

You can argue that the trees were the actual boundary and the position of the fence is relevant if they are claiming that they have "occupied" the land. They don't have to physically sit on it but simply treat it as theirs.

The problem they may face of course is that it is actually very difficult to prove historic use if they do not have bills for fencing et cetera and if they cannot prove 10 years adverse possession, their claim fails.