Adverse Possession of Land adjoining Leashold Flat

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    Adverse Possession of Land adjoining Leashold Flat

    In the early 90's my dad bought a ground-floor leasehold flat in a newish development. Altogether there are 4 on the corner plot with communal areas for both blocks to the front and back of the other block. Directly at the back of ours was an additional strip of land which was unaccessible until the man we purchased from made a gap in the wall, which adjoined our property. We knew him so can verify this. Former owners of other flats were aware as well.

    Ever since then we have had exclusive possession of this-we have set shrubs, put up a shed and used it as our garden. The people upstairs never at any point showed much interest or used it at an point, ever. I've looked it up in Land Registry and the strip belongs to the freeholder. Do we have a claim for adverse possession in the circumstances given our exclusive use over the years?

    Recently upstairs has sold. She married and they moved out intending originally to rent it but got a last-minute buyer. All happened very quickly. Now the new owners have been enquiring about the land and were given the impression it was part of the deal! Where do we stand here. Help/! Next steps, please.

    #2
    If a tenant is granted a lease and occupies adjoining land belonging to the landlord the occupation is not deemed to be adverse if the land is occupied as an extension of his tenancy. That appears to be the case here. However, all is by no means lost. It has been ruled that in such cases the additional land is deemed included in the lease and held on the same terms. - see here for a brief summary of the case: https://swarb.co.uk/smirk-v-lyndale-...-ltd-chd-1975/

    What the new owner of the flat above was given to understand is neither here nor there and does not affect your right to continue to have exclusive possession of the additional land.

    Comment


      #3
      Thanks Lawcruncher. The problem is though they (I've tended to avoid any convos about this until I know where I stand 'legally') would certainly like to use it, which I'm not happy with at all! Not sure at all how to approach the situation with them. I reckon they'll call the management co (about our 4th to date) who'll probably agree with them. Agree I should have acted sooner on this but all happened so quickly. Husband was taking care of sale and I guess assumed this was the 'garden' for both flats! It's also a very attractive plot. Does the fact the previous owners never used it have any bearing on this at all?

      I should also mention access is only through the gap in the side-wall (currently no gate!) as we do not have a back-door. I also get the feeling the new owners suspect there might be something up regarding the garden as he asked about it on the first day they moved in. In hindsight I should have asked what exactly he meant. Beyond explaining the garden wasn't part of the original 'plot' and they way it was acquired ie our predecessor (hoping he'd take the hint!) I've said nothing more!

      Comment


        #4
        If the facts are as you set them out and there is no devil in the detail you should be secure. The only thing I can think of which will upset it is if the upstairs lease includes a right to use the land. That seems unlikely if the previous owner had to breach a wall to get to the land.

        The bottom line is this: You always have been and are currently in exclusive possession. Anyone claiming he has a right to share the possession has to prove it. Since there was never any occupation by the leaseholder of the upper flat that means producing a document which granted the right before your right began.

        Comment


          #5
          Thanks again. No we bought downstairs and were in occupation 3 years before previous owner bought hers. She never used garden at all but was aware I did. What your saying in all of this is very much in line with my own thinking on all of this. Yes, it's all as I said. I'm assuming the fact my predecessor instigated 'access' has a bearing on all of this?

          Yes, I did wonder about the new lease as well as this may well have been negotiated (I cetaiinly hope not!) if solicitor had pointed out this did not form part of the title plan. (It certainly didn't sound like this though at the time he was asking about it) Not sure how I could find this out for sure though and couldn't just rely on just asking them!

          Forgot to mention previous owner had extended the lease shortly before she decided to rent/sell.

          Comment


            #6
            In addition, re altering the lease to permit access to garden, is there anything I could have done to prevent this happening, had i acted in time?

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              #7
              OK folks......I'd like some additonal help on this as have had a chat with the new owners who have asked if I can produce any documentation to 'prove' my entitlement to the garden. Of course I don't since the piece of land in question appears on Land Registry as belonging to the freeholder. Could they (the freeholder) if approached, turn around now and reverse this by stating that both upstairs and downstairs should have access? Have they the 'power' to do this?

              In addition, would it have been possible for the previous owners of upstairs to have included (even in these circumstances) a right to use the land? To be honest I've never trusted the previous owner's spouse who appeared to be taking care of all the selling of the property etc as of course, it would have added to the value of the flat etc

              Many thanks!

              Comment


                #8
                To be in adverse possession of land the person claiming that has to have been in exclusive possession with the intention to possess by excluding all others including the owner with the paper title.

                The Land Registration Act 2002 made changes to how adverse possession of registered land was to be dealt with, so if the freehold title is registered an application to be registered as owner of the parcel of land you are describing will need to be made to Land Registry after 10 years of adverse possession.

                The freeholder will be notified of that application so that it can object to the application.

                As far as the new tenant of the upstairs flat is concerned you currently have a better title than he will have to this area you have been in possession of, although I was unsure what was meant by these words.
                I should also mention access is only through the gap in the side-wall (currently no gate!
                Does that mean anyone can access this land ?

                If that is the case then the first thing you need to do is insert a gate and keep it locked.

                Then make an application to Land Registry to be registered as owner of the extra land and see whether the freeholder will object to that application.

                You should also use the Land Registry web-site to buy a copy of the register of title and title plan for the upstairs flat to see what land is included in that title. That will cost £6, but it will show whether that flat has any rights at all to access the land outside the red line drawn on your title plan that you have been using as a garden.

                Comment


                  #9
                  If you are in possession of land you have no obligation to prove ownership to anyone, the point being that no one who has no interest can make you leave the land if they themelves cannot show title to it.

                  Comment


                    #10
                    Thanks so much again everyone. Really appreciate the advice.

                    So it is possible to apply for possession even if the dwelling (and communal grounds ) are leasehold as opposed to freehold? How likely would the freeholder be to grant possession to a lessee in the circumstances or indeed generally. In addition from what I've read before, Land Registry will consult nearby interested parties and I've no doubt upstairs will oppose this. I do hope our long exclusive possession should count-we've had it now for a little over 25 years. Incidentally, does the 13-year rule still apply?

                    The LR site is down now and will check later but pretty convinced the title plan for upstairs does not include the plot at the back. I rem owner saying he'd contacted the freeholder about being able to use the garden-he'd hardly have done this otherwise. He keeps referring to the plot as 'communal' and I can't take this over, or exclude others from using it!!

                    Actually, while I remember our lease (unlike upstairs which was extended before sale) is running out, so this something else that needs attention in the near future.

                    Any more help would be great!


                    Comment


                      #11
                      And just to clarify-the new owners want to be able to use the garden and were given to believe from the previous occupiers it was communal land! There was a photo in the original ad. Interesting enough (which should have been the case!) no photo about the real, original communal area I referred to earlier, which is behind the other block!

                      Comment


                        #12
                        UPDATE...OK, now I've been approached again who claim they have applied and received permission from the freeholder to use the garden! The strip of land in question is 'communal' land I've taken over. The MGT Co, (don't forget we've had about 5 since we bought the flat in 90/s) and freeholder all say it's communal land. The only thing he's hazy about is whether or not it's contained in his lease (which I've little or no doubt it doesn't) Is it possible to have this altered to include this access even post-sale?

                        I get the impression they started by asking another lessee who appeared to 'believe' it was communal I guess owing to the layout of the flats, it's possible to assume this is the 'communal' area for our block, in additon to having the real communal area all to themselves!! I guess the lines have become blurred over the years/now Of course the original seller is bound to say this anyway if approached now the sale is completed!

                        While being 'adamant' on the one hand about certain claims, I sensed he had elements of doubt about it all eg lease and said something at one point about if it 'turned out to be your land' etc. Incidentally it's about two months since we first had the convo re the garden situation and it's taken this long for them to get back to me about it. I would have thought their solicitor could have confirmed their position straight away with them having to resort to requesting permission from the freeholder! Help!

                        Comment


                          #13
                          Is the land defined anywhere in any lease as communal land?

                          Can the person claiming it is communal land get to it via land which definitely is communal land?

                          Comment


                            #14
                            Thanks Lawcruncher. I'm trying to get my hands on the leases now from LReg. Wouldn't have thought the land is defined as such since leases (inc mine) were before the strip was accessed. However, upstairs did extend theirs some months before sale. Still doubt she'd have been savy enough to have it included. Also new owner is very distinctly hazy on this matter.

                            Land is access via land round the side of ours which I'm assuming is communal. Really want to get this right!

                            Comment


                              #15
                              Originally posted by Lawcruncher View Post
                              I. That appears to be the case here. However, all is by no means lost. It has been ruled that in such cases the additional land is deemed included in the lease and held on the same terms. -
                              Is this an 'automatic' process or should I have made an application for this already?

                              Comment

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