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Stuart J
Stuart J, Property Solicitor
Category: Property Law
Satisfied Customers: 26383
Experience:  Senior Partner at Berkson Wallace
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I have a boundary issue with my neighbour, Southampton, I

Customer Question

Hi I have a boundary issue with my neighbour
JA: What are you located? It matters because laws vary by location.
Customer: Southampton
JA: Has anything been filed or reported?
Customer: I have received a letter from my neighbour telling me to remove my fence, move my shed and move a 15yr old tree as well as give up a portion of my garden.
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: There used to be an alleyway between the houses which when we bought the house over 18yrs ago was already divided between the the two properties. Giving garden access to both properties.Customer: Chat is completed
Submitted: 6 days ago.
Category: Property Law
Expert:  Stuart J replied 6 days ago.

Hello. Thank you for the question. It is my pleasure to assist your with this today.
I have been in the legal profession, in high street practice, for 30 years so I have wide range of experience in a great many different aspects of law.
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.

Expert:  Stuart J replied 6 days ago.

For background - are you a private home owner and are they?

and when did you erect the fence?

Customer: replied 6 days ago.
Just to add my deeds show the original boundary line, less the alleyway. While the neighbours show that they have the whole area. We have not adjusted the boundary since we have lived there. The neighbours have never discussed this with us but have actively bullied and been aggressive towards us since 2017.
Customer: replied 6 days ago.
We reacted the fence approx 2 weeks ago along the original fence line but on our side leaving a gap.
Can I call you?
Customer: replied 6 days ago.
Hi Stuart. As stated we are trying to sell our house.
Customer: replied 6 days ago.
we are private owners.
Customer: replied 6 days ago.
Does all this come down to the deeds? And do I need to lose garden, tree and move shed?
Customer: replied 6 days ago.
I have just found an affidavit from the previous owner stating unopposed access and use since 1984
Expert:  Stuart J replied 6 days ago.

In a nutshell, if the boundary has been where it is for over 10 years, and you have in effect gained a bit of land, then you can have the extra bit of land registered to you under the doctrine 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.

Really, it comes down to whether you want the argument or not.

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

Stuart

Customer: replied 6 days ago.
Thank you Stuart for your help. One question for us is by living here and making no alterations to the fence line doesn't that make our garden ours? There has been no objection from our neighbours until they realised we were moving
Expert:  Stuart J replied 6 days ago.

It’s very common for people to raise this issue when somebody wants to sell. This effectively stops selling just you can’t sell with a boundary dispute because nobody will want to buy until it’s resolved.

If you have use that piece of land exclusively for more than the 10 year period, then you can apply to have it registered as yours under the doctrine of adverse possession.

Customer: replied 6 days ago.
Thank you so much
Expert:  Stuart J replied 6 days ago.

Thank you.

. If you don’t have any further questions, I will mark this question thread as complete but don’t worry, the thread stays open if anything else crops up over the course of the next days weeks or months. I’m glad that I was able to help. Thank you for trusting Just Answer with your legal problem. Kind regards Stuart