Adverse Possession of Land adjoining Leashold Flat

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    #16
    Originally posted by Palomino View Post

    Is this an 'automatic' process or should I have made an application for this already?
    You need to apply to register the extra land.

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      #17
      Thanks again Lawcruncher. Apply to whom exactly?

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        #18
        The Land Registry

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          #19
          So how do we proceed at this point then? Bearing in mind upstairs are claiming they've received permission from freeholder to use the garden. I tend the take the reference to the land as 'communal' with a pinch of salt as I reckon he's sussed it would not be possible for me to occupy exclusively garden if this were the case. Don't trust him at all!

          Need to act quickly so all help gratefully received!

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            #20
            If you have no conveyancing experience go and see a solicitor or licensed conveyancer.

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              #21
              Thanks again! Will do,Will the fact upstairs have acquired permission to use the land not impede this at this point, though? What are our chances now?

              BTW He keeps asking me to 'allow' them access.

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                #22
                Originally posted by Palomino View Post
                Will the fact upstairs have acquired permission to use the land not impede this at this point, though?
                It depends on whether they object.

                The position should be this: If at the time the man you purchased from first took possession no other leaseholder had any right to use the land, then the alleged recent permission cannot override the rights since acquired.

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                  #23
                  Thanks again! Of course he's going to object!
                  In fact,I've little doubt at this stage (when lease confirmed non-inclusion) he's been manoeuvring things behind the scenes to ensure we have little chance of acquiring this strip outright and he can have access.

                  All this talk about it actually being communal etc (Of course the guy they bought it from it bound to say this anyway, to defend his position given it was included in the recent sale) based on an assumption it came with the flat) New owner even 'convincing' the Mgt Co that is should be designated communal eg access for window-cleaning etc-something I rem he mentioned the last time we spoke.

                  Looking back, when we bought it the lady upstairs was working abroad and it was rented out.

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                    #24
                    There are two ways to settle this:

                    1. You give up.

                    2. You apply for registration of the land.

                    If you apply for registration it will bring things to a head. Anyone who objects hoping that his objection will prevent registration needs to come up with some good arguments.

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                      #25
                      Thanks again!

                      1. No way! Though I'm trying to ascertain our chances of succeeding based on all the circumstances/information so far. Don't want a hiding to nothing Am hoping, of course our long exclusive possession would count for a lot?

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                        #26
                        Originally posted by Palomino View Post
                        Thanks again!

                        1. No way! Though I'm trying to ascertain our chances of succeeding based on all the circumstances/information so far. Don't want a hiding to nothing Am hoping, of course our long exclusive possession would count for a lot?
                        I have given my opinion on the basis of what you have said in this thread. However, in this type of case there can sometimes be some devil in the detail which upsets everything. Only a person with an adequate grasp of the relevant law, in possession of all the facts, who has read all the relevant documents and asked the right questions can advise on the prospects of success.

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                          #27
                          Yes of course Lawcruncher, I accept all of the above and thanks again for all your help, which has actually helped a lot! It's a new area for us and I'm trying to get my head round it all in a general sense, at least. At the same time, we're under a lot of pressure here as have a very definite sense that things are being manipulated by the new occupants to ensure things stand in their favour, without any regard whatsoever for our situation. One thing stands out for us-why request permission (if true) if it was already implicit in the sale. In addition, took ages to get back to us after we explained garden shouldn't have been included at all!

                          Unfortunately it's a bad time for us as well as lots of other pressing issues to deal with!

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                            #28
                            One thing stands out for us-why request permission (if true) if it was already implicit in the sale.

                            Good point!

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                              #29
                              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.
                              Of course I don't since the piece of land in question appears on Land Registry as belonging to the freeholder.
                              Have you verified whether the title plan and the register for the freehold title indicate which parts of the freehold is subject to leases.
                              Sometimes areas of land are tinted with separate colours on the freehold title plan where land has been demised to the separate leaseholders.

                              In the initial posting you referred to your Dad buying the maisonette in the early 90's by which time the previous owner had created an access into this additional area of land.

                              The Land Registration Act 2002 only became operational in October 2003, so it would be the case that the area in adverse possession had been in the exclusive possession of a resident of the ground floor maisonette for more than 12 years prior to October 2003.

                              That meant that Section 15 of the Limitation Act 1990 applied so that after the 12 years of adverse possession the legal owner could no longer begin legal proceedings to reclaim its land.
                              Section 17 Limitation Act then caused the legal title to be extinguished.

                              If that can be proven by evidence provided by the various family members who are aware of the circumstances, then it could be the case that that this land will be considered to have been added to the area of land included in the lease.

                              However, if the named leaseholder was your Dad, can you show that it was you that took possession of this land as soon as the family moved into the maisonette.

                              If you were to make an application to be registered as owner of this land in your sole name based on your exclusive possession of this land rather than anyone else in your family doing anything on that land, then you would be seeking to be registered with a Possessory freehold title.

                              That would mean that only the freeholder can object to such an application, so that you will find out whether the freeholder is all that bothered about ownership of this land that may not be part of any demised property covered by a lease.

                              Should the new owner of the upstairs flat object it could be that any such objection would be ruled as groundless, so would not be accepted by Land Registry.

                              In an earlier posting i failed to comment about how the Limitation Act 1980 applied to registered land prior to 2003, but after re-reading this posting it is worth giving consideration to making an immediate application to Land Registry to find out if the freeholder is going to be bothered about retaining ownership of this land that seems to be surplus to requirements if it is not specifically and legally referred to in any of the leases.

                              I realise that you have been recommended to seek the services of a solicitor, but completing some forms that can be downloaded from the Land Registry web-site and paying a fee of £40 for the application and possibly an additional fee of £80 for an inspection of the claimed land is something that can be done quite quickly.
                              The evidence to support the application will be in the form of Statements of Truth made by anyone able to support the application that adverse possession began more than 12 years before 13th October 2003. There are ST1 forms available to download from the LR web-site, although typed statements of truth can be used as well.

                              One other thing to reflect on is that it will require a repossession order to be applied for if the Freeholder wants to re-take possession of the land that has been in your possession for more than 12 years.

                              Then the effect of Section 15 Limitation Act 1980 would need to be taken into consideration by the freeholder before deciding that is a sensible thing to do.
                              15 Time limit for actions to recover land.

                              (1)No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person.

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                                #30
                                Thanks again Pilman for this very helpful response. Felt somewhat relieved reading this info. Had probs logging in earlier.

                                Have you verified whether the title plan and the register for the freehold title......

                                No, not yet as trying to obtain anything from LR at the moment takes time (paper copy by post only ) but seriously at this point I believe we can safely conclude the land is question isn't demised to anyone at all. Their lease (like ours + two others ) is almost def silent on it. Otherwise this wouldn't be happening at all! Incidentally, at the point of sale how should his solicitor have explained the garden access etc, given a photo of the garden appeared in the advertisement. Also when they went back to him after we said it shouldn't have been advertised as such? Something we've been wondering about.........

                                Section 17 Limitation Act then caused the legal title to be extinguished.

                                If that can be proven by evidence provided by the various family members who are aware of the circumstances, ..


                                This would be great! ,Gap was made in 90/91. Need to verify when though.

                                Man we bought from has passed on, like others. However, there are some former nearby residents who live locally who might be able to verify some aspects of this. I will see what I do . (Actually I do wonder if by any chance, our former owner got the *MGT Co to open up the area? Again something I will look into but it's perfectly possible. Doubt they'd still have a record but you never know!) Our own family could help of course. Any other ideas I could look into?

                                ........registered as owner of this land in your sole name.......based based on your exclusive possession of this land you would be seeking to be registered with a Possessory freehold title.

                                Not heard of this. On what basis could this app be made? Any criteria about usage etc etc

                                That would mean that only the freeholder can object to such an application, so that you will find out whether the freeholder is all that bothered about ownership of this land........

                                Interestingly enough, some years before we purchased, a former (freehold!) resident who lived next door approached them about buying the strip but they refused, thankfully. His newly-acquired garden would have extended past our back windows! (I've often wondered why this strip had been excluded from the original plot)

                                Only other thing is, upstairs are now regarding the garden as 'communal' since he claims he's obtained access from freeholder. Someone suggested I write to freeholder requesting this should be suspended since I was about to put in a claim for Adverse Possession. How do I deal with their requests for access from now on?

                                Thanks so much again everyone. Any more questions, please ask! More assistance welcome as well as this is proving a stressful experience for us!

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