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Stuart J
Stuart J, Property Solicitor
Category: Property Law
Satisfied Customers: 24611
Experience:  Senior Partner at Berkson Wallace
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30 years ago previous owners sold a 1.8m plot of land at the

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30 years ago previous owners sold a 1.8m plot of land at the rear of our property to neighbours to allow them to have a driveway. The conveyance document includes a plan that was drawn up by the purchaser's father who was an engineer, not a architect. All lines are parallel or perpendicular. Sorry more to conme
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: The boundary is described in the conveyance and refers to three physical features. A fence at the southern end, the outside of our garage wall in the middle and planting on the line of the boundary to the north. The three features are drawn as a continuous straight line in the conveyance. However the dimensions on the drawing and a check survey show they are slightly out of alignment. Our neigbours removed the hedge without notice and started laying new landscaping. The issue now is that they are insisting on a 'straight line' that cuts across our driveway. The hedge was in existence for 30 years.
JA: Where is the land located?
Customer: Welwyn Garden City. I'm a director in an architectural firm and have prepared a report including detailed survey drawings, research of Land Registry documents, aerial photography etc.
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: Our neighbour managed to contact the owners at the time of the transfer and have reported to us that the intention was to have a 'straight line'. The previous owners agree that they planted the hedge referred to in the transfer. The problem stems from the fact that our concrete driveway is at an angle of 92º to our garage which was not picked up in the drawing or by anyone until the hedge was removed. The issue is a deviation of 2º but that has a significant impact over the length of our driveway.

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.

Have you been in this property 30 years?

and how long the neighbour?

Stuart J and 2 other Property Law Specialists are ready to help you
Customer: replied 14 days ago.
We bought the property in 2019 and our neighbour since 2007
Customer: replied 14 days ago.
I've uploaded the following: the hand drawn sketch plan from 1992 with dimensions. (I realise this is less than 30 years). Photo of the hedge before removal. Photo of the same area after removal. My drawing based on the dimensions in the 1992 plan plus survey dims taken by me. A computer model of the situation as it stood in 1992. Computer model overlaid on photo taken before hedge removal.
Customer: replied 14 days ago.
This is the line our neighbours want.

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:

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.

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:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/688550/n242a-eng.pdf

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

Kind regards

Customer: replied 13 days ago.
Good morning Stuart, a quick follow up question re adverse possession. Since we bought the property two years ago we have been using our own concrete driveway to park rental vans and that requires us to drive across the section of block paving in order to park as the driveway is quite narrow. Does that affect exclusive use?

They will have acquired 10 years before that so it wouldn’t change my answer

Customer: replied 13 days ago.
Thanks - just checking.

No problem

Customer: replied 5 hours ago.
Good morning again Stuart, things have escalated in our dispute with our neighbours. We thought we had a dialogue and my partner had been for a coffee with one of the neighbours and agreed to meet again. Yesterday morning their contractors turned up and dug up the splay on our driveway and relaid the granite setts on the line they consider to be the boundary. We also recieved a letter from them in the post after the works had started.They have spoken to a local surveyor (not a boundary specialist) who has given them a 'brief opinion' based on the Land Registry title plan and the plan in the conveyance document. I saw the surveyor visit site but did not see him taking any measurements and I do not believe he was given any photographs of the hedge and landscaping that was removed.We are biting the bullet and commissioning a boundary surveyor to verify the information we have collated.I wrote them a note yesterday morning suggesting they discuss the matter before continuing and attaching your advice to us. This was ignored and the work continued.My question for today is whether there is any action we should take to register our objection to what they have done? They seemed to believe it is now a fait accomplis and the matter is closed. We are trying not to escalate thiongs ourselves but their behaviour is appalling.Let me know if there is an additional cost for further advice.Regards, Alan

Isn’t it a good job that you have all those photographs?  Well done.

At this stage in time you need to say that you object to what they have done and you’ve been told to write to them formally objecting.

You want to make sure that they never claim adverse possession.

It depends whether you are content for it to remain as it is provided they don’t try to claim the land.

Otherwise it’s an application to court for a determination of the boundary and to be frank, I think you are at that stage now.  The pages which I see are different renewals but I believe there is the facility to pay a bonus.

If you can’t find it, don’t worry but if there’s anything else, I would appreciate if you posted a separate question but you can put my name on it, “For Stuart J Only driveway problem with neighbour digging up my splay” and then it will come to me and I will know what it’s about.

Kind regards