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Stuart J
Stuart J, Solicitor
Category: Law
Satisfied Customers: 23353
Experience:  Senior Partner at Berkson Wallace
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I am demolishing a garage block and building a new house to

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I am demolishing a garage block and building a new house to replace it. From an earlier question I believe I have access rights to the new house via an existing access road. My preferred method of access to the new house would be to create a small ‘spur’ to the existing access road so that I could create a separate and independent access to the new build.
The area of land I need is only some 6m by 3m but the local authority currently own this pocket of land within a slightly larger plot of some 15m by 6m and are playing hardball and wanting not insignificant amounts from me for both access and usage of the land.
I have lived in my current property for almost 27 years now and for that whole time have mowed and maintained the 15x 6m pocket of land. I use it as an overflow car parking area for me and use it for my refuse bins etc. No one else has ever shown any interest or maintained it at all.
My question is - can I ‘claim’ prescriptive rights over both ownership of this land and/or access rights ?
Your answer gratefully received. Thanks in advance.

If someone has used a piece of land without consent and without objection and not in secret for more than 10 years if the land is registered at the Land Registry (12 years if unregistered) they are entitled to have the land registered as their own under the doctrine of Adverse Possession.

Any known owner would be contacted by the Land Registry and an application is made by the possessor and they would be allowed to dispute the application.

Any disputed application is passed onto the Land Tribunal who will decide the issue based upon the evidence.

The has to be an intention to possess the land and it has to be occupied to the exclusion of others which means that fencing is off or possessing it and excluding others in some way is almost essential.

Whilst someone claiming adverse possession will very often have occupied the land for far in excess of the requisite period, it’s very often the case that they have no proof of when they first started to occupy and use the land.

If it was not occupied to the exclusion of others but merely used for a period, then the person using it cannot claim adverse possession but may be able to claim an easement if they can prove 20 years use without consent or objection is not in secret. That application for an easement (such as a right-of-way) would be made under the Prescription Act.

It’s also worth noting that if someone has an easement already over a piece of land, and they fence it off and exclude others, and do so in excess of the requisite period, they cannot claim adverse possession because their possession cannot be adverse if the access was originally by consent as a result of an existing easement.

Even if you have not used it exclusively, you can claim an easement under the Prescription Act but the period is then 20 years.

Based upon what you have told me, you could do either.

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The thread does not close and I am happy to answer any questions you may have arising from this.

Kind regards

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