How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • Go back-and-forth until satisfied
    Rate the answer you receive.
Ask Stuart J Your Own Question
Stuart J
Stuart J, Solicitor
Category: Law
Satisfied Customers: 24625
Experience:  Senior Partner at Berkson Wallace
11292137
Type Your Law Question Here...
Stuart J is online now

We brought our house from the council, on the deeds is a

Customer Question

We brought our house from the council, on the deeds is a covenant that stops you from building walls and fences. We brought our house in 1994
JA: Where are you? It matters because laws vary by location.
Customer: We are in Overton Basingstoke hants
JA: What steps have you taken so far?
Customer: We haven’t done anything yet as it’s our neighbour who has erected the wall and we think it is over on our property
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: No we would just like to know if we should go to the council or whether we need to go down another route to sort the problem
Submitted: 20 days ago.
Category: Law
Expert:  Stuart J replied 20 days ago.

Hello. Thank you for the question. It is my pleasure to assist your with this today.

Please bear with me and I will be online and off-line from time to time and therefore, may be delayed getting back to you. You will receive an email when I reply.

Is this neighbour still a council tenant or owner now?

and what type of wall is this and not a fence?

Customer: replied 20 days ago.
the neighbour is still the owner and it is a 9inches wide by about 2feet high
Customer: replied 20 days ago.
We feel he is encroaching on our land as the party wall is approximately 11.5 inches
Customer: replied 20 days ago.
It is a brick wall 9inchs wise and approximately 2 feet high
Expert:  Stuart J replied 20 days ago.

The first thing to mention is that if anybody wants to bring an action in circumstances like this they must have “clean hands”.

I will explain.  There is a covenant such as not having a caravan, boat, trailer (as you have) and you cannot have a satellite dish, or keep an aviary, or have a shed in the garden or have hedges or fences (very common to keep a development open plan) and you have breached any of those (if they are on your deeds) then you cannot bring an action in respect of the caravan.

For example there is a covenant on my deeds not to have hedges or fences.  As it happens at least 50% of the people do and have had for many years.  I do.  There is also a covenant you cannot have an aviary.

My next door neighbour has an aviary.  I could not take action against him 2 reasons.

Firstly, I have hedges and fences so I do not have “clean hands”.

So provided you have not breached any of the covenants on your house, you can take the neighbour to court although it depends whether the council are interested or not.  Unlikely if the house has been sold.

Further, if this wall has been there for 20 years or more, in breach of the covenant, then the covenant is no longer enforceable under the rule in Hepworth v Pickles.

As if that wasn’t bad enough, if the wall has been in its current place for 10 years or more without consent and without objection and not in secret, then that’s where it stays.

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.

The time periods are not just in respect of the current owner but the periods of the current owner and all the previous owners are added together.

If anybody is going to make an application for Adverse Possession they need to start by reading the practice guides:

There is the first one for registered land:

https://www.gov.uk/government/publications/adverse-possession-of-registered-land/practice-guide-4-adverse-possession-of-registered-land

And one for unregistered land:

https://www.gov.uk/government/publications/adverse-possession-of-1-unregistered-land-and-2-registered-land/practice-guide-5-adverse-possession-of-1-unregistered-and-2-registered-land-where-a-right-to-be-registered-was-acquired-before-13-october-2003

the land registry form is ADV1

https://www.gov.uk/government/publications/adverse-possession-registration-adv1

And there also needs to be a Statement of Truth:

https://www.gov.uk/government/publications/adverse-possession-statement-of-truth-st1

And finally, the application needs to be accompanied by proof of occupation.

I’m sorry, I appreciate the loss of this is not the answer you wanted.

Thank you for letting me assist you with your legal question.  I am glad that I was able to help.

I am not certain whether that answers the question for you or not, but I am happy to answer any specific points arising from this.

It will be my pleasure to help you again either further with this or any future questions you have

Kind regards