I said I would confirm what we spoke about.
What used to be on the ground is a bit of a mess and it’s a bit of a mess because it was left as it was.
I’m looking at this with my judges hat and a boundary surveyor hat.
I would ignore what was on any historical plan because it’s a long time ago now and certainly more than 10 years.
I would also ignore the skewed angle of the garage for the reasons which I’m going to mention to you now.
The border comes down the centre of the hedge and the amount it would be offset by at the end of the hedge is not that much it only becomes significant when it gets to the road.
However the neighbour originally had block paving between the hedge and a sort of ramp area a couple of feet in from the edge of the property.
That block paving goes over the boundary and up to the concrete ranp to the garage.
We then get to the realms of adverse possession.
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:
And one for unregistered land:
the land registry form is ADV1
And there also needs to be a Statement of Truth:
And finally, the application needs to be accompanied by proof of occupation.
You have all the proof you need because it’s apparent that those blocks have been in place for a long time and certainly more than 10 years. So whilst the original boundary may have been down the centre of the hedge because the neighbour has adversely possessed some of your land by block paving it and using it and treating it as their own, the boundary then dug legs up to the side of your concrete ramp, it then comes down to the edge of the broken up area and it then goes off at an angle following the line of the edging stones laid into the drive and that would chop off the corner of the neighbours drive.
It would look a mess and indeed it is a mess but has arisen because of the adverse possession of the block pavers on your land. There is also a good chance that your area within side the angled edging stones is adverse possession of the neighbours land.
I hope this is making sense.
This is a GBP20,000 argument if it got caught and solicitors were involved and because this is a genuine dispute and neither party is being particularly unreasonable or obstructive, if the judge determined the boundary there is a good chance that he would not award costs in favour of either party..
A very expensive piece of land.
So my suggestion would be to project the wall of the garage line towards the road and divided between you. Basically iron out the boundary.
You could put that to the neighbour as a Part 36 offer and if it went to court and he didn’t get better than that, he would have to pay all those costs for rejecting an reasonable offer.
I would be inclined to make a part 36 offer.
Let me explain part 36 offer.
It relates to Civil Procedure Rules part 36.
A part 36 offer has to be in the particular format and even solicitors were getting wrong so the government kindly produced this totally compliant form:
The effect of a 36 offer is that if a Claimant refuses what is in the offer and proceeds blindly to court and fails to BEAT the offer, then the Claimant pays all the legal costs from the date of the offer including the defendants costs of the trial and of course their own costs. Bearing in mind that the big costs are at trial a Part 36 offer is a good incentive to settle.
I’m glad to say that if I were advising the neighbour I would advise the same course of action.
By all means get a boundary surveyor to provide an opinion but expect it to cost GBP1500 and don’t expect it to say anything different than I have already told you.
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