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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 16969
Experience:  I have been practising for 30 years.
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I am looking for advice regarding my fence that was put up

Customer Question

Hi, I am looking for advice regarding my fence that was put up 27 years ago 4 inches onto my neighbours property but with their approval. They haven't paid any monies for it's up keep. We are hoping to sell our property & the neighbour wants to claim the boundary back..... which I am willing to do, however my neighbour wants to move it 15 inches... I am not in agreement, I am concerned she will go ahead with moving it due to the property being empty. I have asked her to put her proposal in writing for us to consider & hopefully sort mutually. Can I apply for adverse permission? If so how long would this take? Thank you.
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: No! Just verbal conversation with neighbour
JA: Where is the property located?
Customer: Bl2 3HU
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No
Submitted: 13 days ago.
Category: Law
Expert:  F E Smith replied 13 days ago.

Welcome to Just Answer.

I will be happy to assist with your question today. I need some time to consider this and compose a response. There is NO need to wait online because you will get an email when I respond. Sometimes it will be minutes, sometimes longer.

I apologise for any unavoidable delay, but rest assured I have not forgotten your question.

why was it moved 4inches onto your neighbours property in first place?

and why does she want to take 15inches?

Customer: replied 13 days ago.
It was originally a hedge boundary & was changed to a fencexwhen kitchen was extended! Huge mass of concrete that couldn't be drilled into at the time!15 inches to enable her to put her car upto the garage ....no of the neighbours use their garages for their cars no space to manoeuvre
Expert:  F E Smith replied 13 days ago.

I’m going to talk about the “extra” piece of land which the neighbours had when the fence was put up in the wrong place.

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.

However because it was done with your consent, they cannot claim adverse possession of the extra piece of land.

I’m a bit confused because you say this was put up 4 inches onto your property but the neighbour wants to claim the boundary back.

Surely that would involve her losing the 4 inches of land. I imagine that you would be happy with that.

The neighbour is not obliged to repair the fence because of it is 4 inches onto your land, it belongs to you.

She is not entitled to just grab another piece of land because it suits her. You could have course her a chunk but there is no statutory formula for what that piece of land is worth. If it enables to get her car down the side of the property, but it couldn’t before, then it’s worth a large chunk of money. However you can just dig your heels in and refuse.

Can I clarify anything else for you?

Please note that my answer is based strictly on the information that you have given me. If you have not given me all the information, then my answer may be incomplete or wrong.

I am happy to answer any specific points arising from this.

If you still need any points clarifying, I will be happy to reply because the thread does not close.

Thank you.

Best wishes.

FES