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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 17181
Experience:  I have been practising for 30 years.
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I would like to know if I have a case of compensation. My

Customer Question

I would like to know if I have a case of compensation. My neighbour and I decided to have a driveway laid on her garden so we could both park outside our properties. We split the cost down the middle and the work was conpleted in 2004/5 Now 15 years down the line my neighbour now says she does not want me parking on it and has started errecting a boundry fence round her plot of land.
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: I have stated that if she is going to do this then I require my half of the monies which I paid to have this work done. I have contacted a solicitor who has written to her and i have sent her a letter myself.
JA: Where is the land located?
Customer: birmingham
JA: Anything else you want the Lawyer to know before I connect you?
Customer: I wantto know where i stand with this, if i go to court whats the likely outcome. Neither of us have any documentation to say monies exchanged hands anymore, the company which completed the work went into liquidation some years ago
Submitted: 4 days ago.
Category: Law
Expert:  F E Smith replied 4 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.

so for the last 15 years you and this neighbour have been fine?

any idea what may have triggered this?

Customer: replied 4 days ago.
Not really sure, she has made statements that other people in the grove have been using it also
Customer: replied 4 days ago.
Sorry cant afford to call right now
Customer: replied 4 days ago.
Are you still there?
Expert:  F E Smith replied 4 days ago.

The offer of a telephone call comes out automatically. It’s optional. You can just ignore it or request it later.

We can continue on here.

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. The use has to be exclusive, to the exclusion of others. If it's just been used along with others, then there is the possibility to claim an easement but the period becomes 20 years.

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.

So it comes down to whether you parked on this land by consent and it appears that you did and therefore you parked by licence and the licence can be withdrawn unreasonable notice.

Whilst the solicitors letter is the first thing that I would have suggested it’s not one that I would be rushing to court over.

Please correct me if I am wrong but I think what you are saying is that you paid 50% for this area to be laid (obviously was done by consent) and now, 15 years after the event, she is saying that in spite of you having paid this, she is no longer going to let you use it.

So would you be entitled to the 50% back? In my opinion, probably not because you had 15 years with the value.

It really depends whether you want to issue Small Claims Court proceedings (I assume it is under GBP10,000) and letter County court judge decide even if the claim fails. At least you would have had your day in court.

The other potential problem for you is that under the Limitation Act, the statute of limitation in respect of recovering the money is six years, from the date the money became June, subject to a long stop date of 15 years.

There is a legal doctrine which may assist you called estoppel. There are 2 types of estoppel, proprietary and promissory.

Promissory Estoppell. This is a technical legal doctrine not used very often. It says that if anyone has been promised something during the lifetime of a person and they relied on that promise to their detriment then they are entitled to have whatever was promised.

The classic case is indeed the young man on the farm, who is told by the old man “don’t go off to seek your fortune son, but stick with me and work on the farm and I will leave it to you when I die,”.

So the young man doesn’t go off to seek his fortune and stays and works on the farm and it turns out that when the old man dies he leaves everything in his estate to the prize cow, Daisy or his new girlfriend, who is 30 years younger than he is.

In that case, the young man having given up a future (to his detriment) on the basis that one day (he was promised) the farm would be his and he believed it and relied on it, he can get a court order that the farm is transferred to him.

Such claims are not cheap or quick to bring in do require a large burden of proof of the promise and reliance to detriment.

Proprietary estoppel arises if someone does something expecting an interest in the property and the common example is paying the mortgage or improving the property particularly if they do not own it. In that case, they have relied on the expectation to their detriment.

You could potentially rely on Estoppel and that doesn’t have the same time limits.

I am glad to help.

Hopefully, I have answered your query in a way that is simple and easy to understand.

I would be more than happy to clarify anything else for you. In the meantime, thank you once again for using our services.

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

Please be aware that my answer is based strictly upon the information you have given me.

If you still need any points clarifying, I will be happy to reply because the thread does not close. In fact, it remains open indefinitely.

I am always happy to answer any further questions you have on any new thread in which case, please start your question with, “ For FES only”.

You don’t need to do it on this thread, just a new thread. You have me exclusively on this one.

Thank you.

Best wishes.

FES

Customer: replied 4 days ago.
Thank you for your response. So given the information I have submitted, in your opinion, is it worth me going to small claims court? At present no further work can continue to erect the boundry fence has I have refused to remove my van from my part of the drive. Im sure I wouldnt get 50% of the monies back from this woman, but you think i would get something?.
Expert:  F E Smith replied 4 days ago.

One of the first things which lawyers are taught law school is “never go to court on a principle.” Let me exaggerate to prove the point.

The lady next door says, “pay 50% of tarmac in this area of my land and I will allow you to park on it”

(which is in effect what happened).

So you do it and assumes it’s finished she then says, “I have changed my mind, you can’t”.

To the greatest extent, that is what has happened, the only difference is the timescale. She didn’t do it assumes it was finished, but 15 years afterwards.

If she had done that immediately afterwards, you would almost certainly have a claim. All that’s happened over time is that it’s diminished. Or has it? Debatable.

I think you do have a claim but it’s the value of the claim which is problematical.

In my opinion you almost certainly have a claim in Proprietary & Promissory Estoppel.

Assuming that the amount is under GBP10,000, I would be inclined to issue Small Claims Court proceedings against her and let a judge decide how much it’s worth.

It was a no-hoper I would tell you. I can’t guarantee that you would win but let me put it this way, if I was in your situation, (I wouldn’t because I would have formalised it at the time) that’s what I would do.

It’s not worth instructing solicitors because you won’t recover those costs in the Small Claims Court.

Do remember that I can only give you my opinion.

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.

Another lawyer may have a different opinion. Litigation needs at least 2 parties and neither goes to court expecting to lose.

Nonetheless, one of them does, even though they have been told by their respective legal advisers that they have a good chance of success.

If there was a black-and-white answer to every legal problem there would be no need for anything to ever proceed to court.

No problem at all. I am really glad to help. Come back to me at any time if anything else needs clarification. Kind regards

Customer: replied 4 days ago.
Mmmm many thanks for your help, something im gunna have to give great thought.
Expert:  F E Smith replied 4 days ago.

I’m glad to help. Kind regards.