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Stuart J
Stuart J, Property Solicitor
Category: Property Law
Satisfied Customers: 24624
Experience:  Senior Partner at Berkson Wallace
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I require advice on Adverse Possession, I have a draft page

Customer Question

Hi I require advice on Adverse Possession
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: I have a draft page of the background from where it started to where I am now
JA: Where is the property located?
Customer: Portchester in fareham
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 as I said I have it written detail step by step
Submitted: 15 days ago.
Category: Property Law
Customer: replied 15 days ago.
shall I send you a word doc of where it started and where we are now?
Expert:  Stuart J replied 15 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.

Yes please

and I will need all the background to this matter in order to properly advise you - thanks

Customer: replied 15 days ago.
sending now
Customer: replied 15 days ago.
if you could read my background document first of all that would be appreciated
Customer: replied 15 days ago.
Did you receive the word doc?
Expert:  Stuart J replied 15 days ago.

I will give you the full background first

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.

If we then apply that to your case, you started this in 2006 and presumably you can show that you have occupied this land since then.  If you have that proof either dated photographs or receipts for fencing or suchlike, then you have an excellent case for adverse possession of that land but without the proof you are going to struggle particularly as developers generally have deep pockets.

Whether your claim succeeds or not depends on the evidence of the intention to possess the property to the exclusion of others which is why fencing is generally really important.  However even without the fencing, evidence that you have taken over that piece, with dates, is usually sufficient.

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 15 days ago.
I have photos dating back 2009 of the original fencing,which enclosed about 45 sq yds. Then in 2016 I pushed the fence back to extend another 15 sq yds
Customer: replied 15 days ago.
does extending jeopardise my case?
Customer: replied 15 days ago.
I'm also still interested in purchasing the whole 700 sq yds. That would be my main goal. so does the my proposed adverse possession action add leverage for the owners to agree to sell?
Expert:  Stuart J replied 15 days ago.

The 2009 photographs would be proof for the 45 yd²

The 2016 photograph only give you 5 years for the extra bit.

Each piece stands on its own merits.

Adverse possession or purchase, makes no difference, depending on how commercial the buyer of the land is and how the extra piece of land affects their development.  They may not want to get rid of it at any price

Customer: replied 15 days ago.
Ok so am I within my rights not do do anything with regard to the owners request to vacate, i.e. claim squatters rights?
Customer: replied 15 days ago.
also I didn't take photos of the fence back in 2016
Expert:  Stuart J replied 15 days ago.

As I said earlier, what happens here will hinge on the evidence.

Squatters rights is just the common name for adverse possession.

You need to make an application for adverse possession of the area although you might want to make an adverse possession for the area in two parts although you actually haven’t got an application to make in respect of the 2016 Part.

They will no doubt oppose your application and the matter will end up in the land tribunal

Customer: replied 15 days ago.
what would the average costs to take this to the tribunal? Would a law firm offer no win no fee
Expert:  Stuart J replied 15 days ago.

Costs are not always awarded in the Land Tribunal if there is a genuine dispute.  You could be looking 10 grand or 20 grand if you lost and costs were awarded.

Customer: replied 15 days ago.
I see you believe we have a genuine case, so it would wise to at least test the water before making a decision
Expert:  Stuart J replied 15 days ago.

It’s certainly worthwhile putting the application in for adverse possession and then see what reaction you get.

Let me put it this way, I wouldn’t say it’s a no-hoper from outset.

Customer: replied 15 days ago.
I should have sent this to you yesterday, the last correspondence from Blake Morgan. a) by a positive response do they mean we agree to remove the encroachment or recognising the letter and state we will be taking legal advice. b) The term advise our client as to its available remedies, what options do you think they would suggest and c) do I need to act immediately, so if one of those remedy options occur it may mean any adverse possession activity would be deemed null & void due to my tardy response?
Expert:  Stuart J replied 15 days ago.

They are saying that if you don’t agree to remove the trespass, they will decide what to do which could be taking court proceedings.

You can reply that you have now submitted an adverse possession claim and they will be hearing from the land registry in due course.  It depends whether you want to give up the land or you want to try and keep it.

Customer: replied 15 days ago.
What I mean is, can I submit an adverse possession claim in response to them deciding to take court proceedings or do I have act immediately before them?
Expert:  Stuart J replied 14 days ago.

There is no reason why you cannot submit the application after they issue court proceedings but my advice is to get it done now.  And tell them.  It puts you in control

Customer: replied 14 days ago.
The problem I have is I go on holiday in 10 days time, leaving 6 working days to get a solicitor boarded and my submission completed. I return 8th October hence my question about a late submission
Customer: replied 14 days ago.
or can I complete the request for Adverse possession, with a statement of truth plus evidence in advance and arrange a solicitor upon my return?
Expert:  Stuart J replied 14 days ago.

It’s unlikely you will get a solicitor in a week is no reason why you can’t make the application yourself.  Just work through it a bit at a time.  You can do the whole thing yourself if you wish.

Customer: replied 14 days ago.
Ok but what if just returned a holding email explaining my absence requesting the 15 day period be elongated to 25 days? is there ever any flexibility due to personal circumstances?
Expert:  Stuart J replied 14 days ago.

They will always give you a deadline but they will rarely stick to it and if you give them a deadline, even if the court gives them a deadline, they will rarely stick to that either.  I find it is a constant source of frustration.

Write back to them, acknowledging the correspondence and telling them that you are on holiday from DATE to DATE you will revert to them on your return.

Meanwhile, debt the application for adverse possession in.

Customer: replied 10 days ago.
I have initially contacted one solicitor firm Setfords forwarding the attached as background to the case. Their response (Jonathan Levinson – consultant) agreed I had right to Adverse Possession but because I knowingly knew the land wasn't mine by application would fail. My thoughts on this whilst I knew the land was never mind for years I never knew who owned it and hence my action was to claim under that auspices. Do you agree with Jonathan’s assessment?
I have also attached a cut n paste jonathans email on a word doc
Expert:  Stuart J replied 10 days ago.

Knowingly knowing that the land doesn’t belong to you doesn’t come into it.  It’s not one of the standard enquiries.

I disagree with what he has says.

Do remember that I can only give you my opinion.

Another lawyer may have a different opinion. Litigation needs at least 2 parties and neither goes to court expecting to lose.

Nonetheless, one of them does, even though they have been told by their respective legal advisers that they have a good chance of success.

If there was a black-and-white answer to every legal problem there would be no need for anything to ever proceed to court.

If you believe that the land belongs to you then your possession is not adverse!!!

Customer: replied 9 days ago.
I definitely agree with you. I know that I didn't own the land originally but because of my actions such a long time - 15 years give me adverse possession. So this is despite the investor bought the land 5 months ago and it is obviously registered under them but my action all those years ago gives me a good case? It's taken over 20 years to appear to claim they own the land
Expert:  Stuart J replied 9 days ago.

I’m not in the habit of giving people the answer they want.  If it was bad news.  You would get bad news.

In your case, I agree with you.

Do remember that I can only give you my opinion.

Another lawyer may have a different opinion. Litigation needs at least 2 parties and neither goes to court expecting to lose.

Nonetheless, one of them does, even though they have been told by their respective legal advisers that they have a good chance of success.

If there was a black-and-white answer to every legal problem there would be no need for anything to ever proceed to court.

Customer: replied 9 days ago.
Thanks for your help, I've booked a F2F appointment with a solicitor from Glanvilles next Wednesday to start off the process
Expert:  Stuart J replied 9 days ago.

Thanks for the update.  Please let me know how you get on.