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Joshua, Lawyer
Category: Property Law
Satisfied Customers: 25410
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Dear Sirs, Boundary issues

Customer Question

Attachment: 2015-04-29_134806_6227-1_to_200_-_a3_4.pdf

Dear Sirs, not sure there will be an easy answer to this one, but I will give as much information as possible. In 1992 my neighbour built a house on his plot of land. At the time the person selling the land had not divided the land (into two plots) by way of a boundary fence, although the land was Registered with the LR, and the intended boundary position between both plots clearly defined. In 1993 I built my house (off plan). My neighbour has access over our driveway into his property, but because of a dispute that has arisen over the width of his access, we have had a full survey carried out of our plot and most of my neighbours plot. Firstly, this has shown that my neighbour has no right to widen his entrance as per what is demonstated as the Legal boundaries, however the survey has shown a large discrepancy in relation to the boundary line between us and part of his entrance drive, which is directly off our driveway. Having looked at my neighbours drawings for his property, it can be shown that he moved his entire house by one metre from the position where it should have been built, over towards our boundary. I appreciate that the Boundary line as shown on the LR documents is not 100% accurate, however, the survey shows that at least half of the boundary between us some 13 metres is 1 metre out, and when coupled with the drive area I mention above the entire loss of land is approx 25-28 Square metres. I have been reading the Land Act of 2002. My understanding is that I might have a claim to obtain back this land. I can demonstrate that my neighbour knew perfectly well that he obtained/took land from my plot. I can also demonstrate that my partner purchased a 50% share in my property in the year 2000. I wonder therefore when the 10 year rule might run from; 1992 or 2000? Many thanks. STE

Submitted: 2 years ago.
Category: Property Law
Expert:  Joshua replied 2 years ago.
Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience. May I clarify your refernce to the year 2000 please? I am not certain what you base that date on from what you have kindly posted? Could you kindly advise?
Customer: replied 2 years ago.

I built my property in 1993. In July 2000 my partner and I decided that she would sell the house where she lived and purchase a 50% share in my property so we would then own the property 50/50. This was of course done formally using a Solicitor, and was registered with the Land Registry in the normal manner.

Expert:  Joshua replied 2 years ago.
Thank you for the explanation. The starting point for this is a determination of the location of the boundary line. From what you say you have undertaken a precise survey which results are that the boundary line is along the line you describe and if that is correct then the neighbour may have built on some of your land. However unless the neighbour has accepted the results of that survey then the survey is not in itself conclusive and you may need to consider using the land registry's boundary determination service or an application to the county court in order to obtain a legally binding determination of the boundary before you can addres the question of adverse possession because until you do you may hav a dispute as to who actually owns which land - i.e. the neighbour may claim he has not built on your land despite your survey that says he has. To use this service you need to instruct a surveyor to prepare a a very precise plan showing the exact line of the boundary in the surveyors opinion. I belive from what you say you have already done this though you will need to ensure that the surveyor is a RICS qualified surveyor. You then complete form DB (link below) and send to the Land Registry who will inspect the same and serve a notice on your neighbour offering him the opportunity to object to your proposals. If your neighbour agrees to this proposal your respective title deeds will be updated with precise measurements which are legally binding going forward and the plan updated to show the agreed new boundary line. If the neighbour were to object to the proposal then this would be treated as a a boundary dispute which can be determined by the Land Registry Adjudicator. Once the boundary line has been determined then you can address the question of adverse possession. In the assumption that the determination is determined as you expect and it reveals that the neighbour has built on your land, then it is not a question of you having to claim adverse possession. You already own the land following the result of the boundary dispute assuming the decision goes as you expect. In these circumstances rather it is your neighbour that may have to consider a claim for adverse possession of your land. If your land is registered he will need to show that he has been in occupation of your land for 10 years or more without your consent and following the introduction of the Land Registration Act in 2003, because he cannot show 12 years of occupation prior to 2003 he must also show that he has been in adverse possession of land adjacent to his own under the mistaken but reasonable belief that he was the owner of it that the exact line of the boundary with this adjacent land has not been determined. Based on what you say he may be able to show this final condition but if he cannot then any application for adverse possession on his part will be rejected. If he cannot claim adverse possession of your land then he is trespassing in having built on your land. You cannot force him to remove the building at this stage because the doctrine of estoppel will prevent this but a court will be prepared to award compensation to you for the loss of your land. usually the damages are assessed on the likely commercial value the neighbour would have had to pay for the land he has unlawfully occupied had he negotiated a sale of the land to him with you. I hope the above is of assistance? If you have no further questions for now I should be very grateful if you would kindly take a moment to click to rate my service to you today or just reply back to let me know if the above is helpful. Your feedback is important to me. If there is anything else I can help with please reply back to me I'd be very grateful
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Customer: replied 2 years ago.

As I believe this bit is free, thought I might ask a follow up question. I can demonstrate that when my neighbour built his house in 1992 he 'moved' it over towards my Plot by one metre. At that time there was no fencing between the two plots, but the boundaries had been defined and registered with the LR. My neighbours plans show that the fence between his plot and my plot should be one metre from his house; this is why the boundary line/fence is now out by one metre, as he kept the fence one metre from his property in the hope no one would ever notice.

You mention that I might receive compensation, however, my neighbours house is not actually built on my land, and I would prefer to move the fence to its correct position. The area in question is just pea shingle parking area. Do you think this would be possible? I do not believe that my neighbour can show he honestly thought the land to be his.

Expert:  Joshua replied 2 years ago.
My apologies for the delay in reverting to you owing to the bank holiday weekend. You refer to measurements. Could you tell me if your land registry title plan shows measurements or are these other plans you refer to?
Customer: replied 2 years ago.

Hi Joshua, I didn't think I would get a response over the Bank Holiday, so many thanks. I will explain as best I can:-

I refer to my neighbours house built on Plot 2

I refer to my House as built on Plot 1

When the two plots were divided (by the one owner of the land) he drew up a boundary line and the entrance to Plot 2 that leads off the driveway which Plot 1 owns. There is one measurement on these drawings showing the southern boundary of Plot 2 which should be 29 metres from west to east (east being the boundary point between Plot 1 and 2.)

The Plan in question has a scale written on it being 1:250, and it is that plan that is registered with the LR.

When my neighbour built his property in 1992 there was no physical boundary between Plot 2 and Plot 1. In order to assist with the positioning of the boundary, my neighbours site plans show certain setting out distances. There are two main examples for this on those plans:-

1. The distance from my neighbours garage to his western boundary should be 4 metres.

2. The distance from the eastern wall of his property to the central boundary fence (between the two properties) should be 1 metre.

I have measured item 1 above, and the distance is 5 metres.

The distance from my neighbours eastern wall of his property is one metre, but because he moved his entire house over by one metre, he has actually built his house right on the boundary line. (as per my survey report)

Having worked out the difference in square metres from that of the registed plan and that as shown by my survey, it demonstrates +/- 5% a 35 square metre loss to my Plot (1)

My main question I believe is can my neighbour demonstrate he honestly thought this to be his land (being adjacent land to his own)?

I can demonstrate that he moved his house by one metre, and although I appreciate you may tell me this would be difficult to prove, I know he would have done this deliberately when he placed the fencing in position. If you knew my neighbour you would agree! I should mention that my neighbour built his own house, and would therefore have been fully involved at every stage; i.e. setting out etc.

Just for your information my Surveyor is RICS qualified, and in fact does a lot of work for the Courts in my area (Bournemouth, Dorset)

Many thanks (Steven)

Expert:  Joshua replied 2 years ago.
Based on what you say you would appear to have two principle options:
1) self help - giving notice to the neighbour that he is trespassing on you will and that you intend to relocate the fence to its correct position as referenced by your title plan within say 10 working days. Either the neighbour will object giving rise to a boundary dispute as above or he will not or fail to respond in which case you could considergoing ahead with the relocation with the risk that he may raise a future dispute which may mean you have to relocate the fence again if you are not successful in the outcome of any dispute.
2) seeking a court declaration that fence iss in the wrong place and in order that the fencing can be relocated in the correct position. As above, the neighbour may apply for adverse possession of the land which you may need to be ready to defend on the basis that you can demonstrate that he did not reasonably believe that the land was his as you refer to above. In order to seek a court declaration, you would need the following form:
Customer: replied 2 years ago.

Hi Joshua, many thanks for this. I think I can now close this down with you, as I believe you have given me all the information I now require.

Thanks, Steven

Expert:  Joshua replied 2 years ago.
I'm glad I could assist. Good luck with bringing the matter to a conclusion.

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