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Joshua, Lawyer
Category: Property Law
Satisfied Customers: 29201
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Please advise me on the following issue: --- We own a

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Please advise me on the following issue:---We own a freehold land and a neighbouring property (also freehold) built a fence so that they joined a lot of our land into their garden. They moved the fence by more than 3 metres into our property.Now they are selling their house and described it in the advert as having a massive side garden, even though all the land on the side of their house belongs to us.(Question 1) What can we do to stop them selling the house and actually move the fence?(Question 2) Is there a form or application we can send to the Land Registry which will force them to move the fence back or register our interest so they cannot sell until it is resolved?As an option out of this problem, we can sell them part of our land that they encroached.As they are selling their house, they already found a buyer and instructed their solicitor. We know who their solicitors are. (Question 3) What shall we write to them?(Question 4) I presume they cannot sell a house with a pending dispute like this?---Looking forward to hearing from youThank youBest regards

Hello and thank you for your question. My name is ***** ***** I will be very pleased to assist you. I'm a practising lawyer in England with over 15 years’ experience. Please be aware that although I will endeavour to reply to you promptly, I am also in full time private practice and so I may not be available to respond immediately and it may also take me a few minutes to prepare a reply. The site will notify you as soon as I respond. I look forward to working with you to answer your question fully.

I am very sorry to read of the above and I imagine what a difficult position it must be. I will certainly try to clarify your options.

  1. may I ask approximately when they constructed the fence effectively annexing part of your garden please?
  2. did they carry out this action with your permission?
  3. if not, have you raised the issue prior to now?
Customer: replied 8 days ago.
1. More than 20 years ago I presume. We bough the property last year and was already like this.
2. We were not the owners then
3. We sent them a notice of encroachment asking to remove the fence and have not heard from them so far.

thank you. The length of time the fence has been in place I will not pretend does not present a problem. The potential problems are twofold-if the fence has been in place for more than 20 years, then they may be able to claim a prescriptive right over the land in question to continue to use the land. If they can demonstrate that they have used a particular area of your garden as of right without your permission which includes permission of previous owners of your property, then they can seek to establish a prescriptive right to continue to do so and registered this as easement as against your title.

In addition, if they can demonstrate that they have used the land in question for 10 years or more and have enclosed it and treated it as their own in the mistaken but reasonable belief that the lannd belonged to them, then they could seek an application for adverse possession in respect of the land.

I wonder whether this issue was picked up when you bought the property as regards ***** ***** in the correct location? it may also be worth contacting your seller if you still have the means of contact for them. If you can find some form of permission granted by a previous owner, that could serve to mitigate one or both of the above risks significantly or absolutely.

On the other hand, if they are looking to sell the property, this does give you a potential advantage in that people are often very reluctant to have disputes raised particularly when they are trying to sell a property as this can put off potential buyers. This may therefore be a good time to strike and if you are not able to agree the position of the boundary, consider raising a boundary dispute using the land registry is boundary dispute resolution service which costs £90 initially though in the event the neighbours disputes your claims, there is also the cost of a surveyor to prepare a detailed plan and report to consider:

of course, even if this application are settled in your favour, it does not guarantee or preclude the neighbours seeking an application for adverse possession potentially.

Customer: replied 8 days ago.
Dear *****, thank you for your reply! You suggested to make an application to Land Registry on the DB form to establish the boundary, but I don't understand why do we need to do this, given that both ours and neighbour's titles show the boundary just along their house left side elevation. It is shown on the Land Registry title plans very clearly.
Customer: replied 8 days ago.
Can you please suggest what we can write to their solicitor (and buyer's solicitor since it happens that we know them as well) in order to make them either move the fence or buy part of our land from us?

the reason they may be necessary is because the title plans if you cast your eye to the bottom of the plan provide that the plans for the purposes of identification only. Accordingly, the plan will often not be definitive in cases other than wildly incorrect boundary locations. The purpose of the above application is to add measurements to your title which become legally binding. If the neighbours accept that the boundaries in the wrong place or it is so wildly out of place as compared to the title plan that it is clear the fences in the wrong place, though this does not in itself resolve the question of precisely where the fence should go, then this may reduce the need to make the above application but it is still likely to have value for the reason mentioned that you ultimately even if you agree that fences the wrong place need to decide where it goes instead

if you know which solicitor is acting for them, you can put the solicitor on notice of the dispute. Often you will not know which solicitor is involved and in those circumstances, you can notify the agent in writing and ask for the confirmation that they have drawn the attention of any buyers to the fact that this matter is disputed as it is a criminal offence on the part of the agent to market the property in a misleading fashion or omitting pertinent issues such as a dispute

Customer: replied 8 days ago.
Thank you! Yes we know who their estate agent is and also who is their and buyers solicitors. Can you please explain in more detail what exactly whould we write to them?

you would simply want to write to in the circumstances perhaps the agents and the solicitors-there is no need to produce to letters or emails but simply copy both of them in on the same highlighting the fact that the fence is in entirely the wrong position, perhaps enclosing a copy of the plan if this self-evidently shows that this is the case and making a demand that the fence is relocated to the correct position and requesting an undertaking on the part of the agents that they will update their marketing to reflect this issue reminding the agents that it is of course an offence under the Consumer Protection from Unfair Trading regulations 2008 two misleadingly market a property or omit from marketing pertinent information such as the existence of a dispute as to part of the land being sold

Customer: replied 8 days ago.
Thank you! Can we make a OS1 search with priority in the meantime against their title to make sure they don't complete the sale before we made the DB or any other application?

you can make the application but they would be able to apply to remove priority on the basis that you have no legitimate interest to make the application for a priority search as you are neither a purchaser not a lender

Customer: replied 8 days ago.
the OS1 can be only done by a buyer or a lender? Not any other interested party looking to make an application against that titel? Thanks.

yes or if you are taking a lease out of the freehold title. If you look at the application form, you will see that you need to call of those boxes. You could register a unilateral notice against the title though they can apply to have this removed at which point you would need to substantiate your claim to an interest in part of their property:

Customer: replied 8 days ago.
Thank you! Do you mean we can use the form UN1 instead of OS1? What exactly does the UN1 do? I never heard of it before.

unilateral notice is simply a notice that you claim to have an interest in the property which based upon what you say you do. A notice will be recorded on the title and will be seen by any potential purchaser. The notice has limited value because the seller can apply to have it removed and then you would need to provide evidence substantiated your claim to your interest which you may or may not be able to substantiate unless you have raised a boundary dispute as above unless plans are clear that the fence is in the incorrect location self-evidently.

Customer: replied 8 days ago.
Thank you! Before we made the UN1 application, Does the seller (or their solicitor) have to disclose to the buyer (or their solicitor) the fact that their is a boundary dispute? Or we have to apply to the First-tier Tribunal (Property Chamber) and only then this issue has to be disclosed to the buyer?

The agent has an obligation under the above regulations and it is a criminal offence not to do so. The solicitor has no specific obligation to disclose but the seller must confirm any disputes on the Property Information Form

Joshua and 3 other Property Law Specialists are ready to help you
Customer: replied 8 days ago.
Thank you

I'm glad the above answers all your questions. If there is anything else I can help with please reply back to me otherwise thank you very much for visiting JustAnswer and I hope we will see you again in the future.