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ReadyLaw, Lawyer
Category: Property Law
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I still have a query over what takes priority in a domestic

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I still have a query over what takes priority in a domestic boundary situation - the 12 Year Rule or the original boundary position?Going back a long way, our houses were built in 1929, the historic neighbours built a garage right up to the boundary fence, and with the garage built a retaining wall. (This might have been in 1930s)We know that the boundary fence was in position when the garage was built as the zig zag timber pattern is still in the concrete.When this fence failed it was removed but, as the concrete retaining wall was built over the boundary and partly into what is our Garden, the boundary fence could never go back in the same position without breaking the retaining wall.(It seems that the concrete for the retaining wall was poured through from the neighbours against formwork attached to our side of our Boundary fence, therefore crossing the boundary)The following fence was constructed Approx 20cm to our side of the boundary, with concrete posts which are built touching the concrete retaining wall, but the fence position at this stage is Well inside the original boundary.The fence panels on this fence (and the original boundary fence) are on the far side of the fence posts. The concrete posts are recessed on that side to accept an arris rail.We are currently replacing the fence panels on these pre existing fence postsThe first 3 lengths of fencing also have a pre existing concrete gravel board 5cm (2 inches) wide and our fence panels are more robust than the fence we are replacing but fit in this 5cm Width.We continued the same fence panel design but on a timber gravel board from the third panel onwards where no gravel board was previously present. Our neighbours have objected to the width of the fence and work has stopped. They claim they have 30 cm from the back of the garage to the fence and with our wider panels that this 30cm would then be narrower and that it’s their land.We would like to continue with the more robust fence and feel that this is reasonable, as the garage gutter is exactly in the line of the original boundary fence and this would mean our fence is well within the boundary.I guess the crux of this problem is that our neighbours would argue the 12 year rule and we would argue that the land in question was never deserted by the then landowner, but he was forced off this land by the neighbour’s constructed retaining wall, so the 12 Year Rule should not apply. This might have happened in the 1930s.We and our neighbours have Inherited a situation where our fence and their retaining wall occupy the same space, our fence posts may be not overhang the retaining wall, but the affixed fence panels do.Assuming the original boundary still stands;
Our suggestion for an agreement would be that
-both parties accept the original Boundary position
- we accept their retaining wall on our land
- we give the neighbours a legal right of access over the strip of land from the original boundary fence to the current fence line
- we can continue to build our fence as it is well inside the original boundary And whatever space is left is accessible to themObviously this won’t work if the 12 year rule appliesWhat would you expect to hold more weight in this situation? Boundary or 12 Year Rule?Are our suggestions reasonable?Thanks for your help

I've been working hard to find a Professional to assist you with your question, but sometimes finding the right Professional can take a little longer than expected.

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Thank you!

Good day Helen,

Your question has been forwarded to me to see whether I may be able to assist.

Customer: replied 2 day ago.
Hi there
In response to your message I am happy to wait for advice thank you

Thats fine. I am typing a response as we speak.

Thanks for your patience.

The law relating to adverse possession of land in the circumstances you have described can be very complicated and often times become very litigious.

Adverse possession ( or the 12 year rule referred to by you) would allow an individual who is in possession of land to acquire rights over that land in certain circumstances, even though they are not the ‘formal’ owner of the land. in order to claim adverse possession, however, a squatter must show that they have been in factual possession of the land, with the necessary intention to possess and without the owner’s consent. To establish adverse possession, your neighbour would need to show any of the following:

  • where a land owner encouraged a squatter to believe they owned the land. Having done so, the squatter acted on that belief to their detriment, the owner of the land was aware of this and it would be “unconscionable” for the owner to deny the squatter the rights that they believed they had.
  • where a squatter is able to establish there entitlement to be registered as the proprietor of the land for some other reason. For example where a squatter entered into a contract to buy land and paid the purchase price, but title was not formally transferred.
  • where a squatter has been in adverse possession of land adjacent to their own for at least 10 years under the mistaken belief that they are the owner, the exact boundary line has not been determined and the land was registered more than a year prior to the application.

Based on the above, the situation you have described falls primarily within the third category. It seems to me that your neighbour has occupied this land for several years under the mistaken belief that the land belonged to them. The difficulty with arguing that the previous owner was essentially forced of their land is that you would have to demonstrate a factual history of giving this neighbour notice of your interest in the land and that there was no implicit consent on your part ( or the previous owners) to their occupation of the land.

I must be candid in saying that you may experience difficulty with this one and could face a situation where your neighbour could exert an interest over the land.

That being said, I would recommend at the very least that you do undertake mediation. This in my opinion would be the most amicable and cost effective way to resolve this as your proposals do seem fair.

Hope I clarified things for you. Kindly let me know if I may be of further assistance.

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All the best


Customer: replied 2 day ago.
Does this ten year rule still apply today?Our neighbours have lived at the address for less than ten years but the house has had successive residents for a total of much more than ten yearsWhat is the process for them applying for ownership of the land - or is it just a condition which will grant them that right automatically?I was told the 12 Year Rule ended in 2003 but Is the ten year period of residence is still likely to allow our neighbours to claim the land?I was advised by another party that as the neighbours didn’t know the position of the actual boundary and didn’t know they were ‘squatting’ that they lacked the knowledge to allow them to claim the land. Also that the law required more than inadvertent possession.I’d be grateful if you could clarify.Thank you For your advice

Yes the 12 year limitation rule was replaced by a 10 year requirement for registered land. It does still apply today and your neighbour can rely on the previous occupiers possession of the property to establish a claim in adverse possession.

They would however be required to demonstrate that the previous owner was in occupation of the land for a number of years and that passed on to them. They may struggle to prove this if they do not know the previous owners whereabouts and therefore unable to obtain a statement from them.

It is not automatic at all. They must apply to be registered owners of the land an you may object to this.

Please see below link with some further information about adverse possession claims and how you may object.

Practically therefore, you may want to give them notice now that they are on your land without your consent and that you intend to erect a fence on that aspect of the property.

ReadyLaw, Lawyer
Category: Property Law
Satisfied Customers: 1707
Experience: Bar Professional Training Course
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Customer: replied 2 day ago.
Thanks for your help, there’s a bit of reading there for us to do!