Adverse Possession of Land adjoining Leashold Flat

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    #31
    I've got an earlier post awaiting moderation, but something else struck me about the sale of the upstairs property (which included the garden which is NOT included in the lease) surely there are some grounds for redress here? Surely their solicitor should have pointed this out?This is what the buyer should be pursuing and not punishing us in the process? Not saying he didn't, of course but we feel all this is so unfair on us. Then to obtain 'permission' to use the garden? Something isn''t right here.

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      #32
      OK folks, unfortunately our saga continues after what appeared to be a brief respite when the father of the couple (who appears to be driving things and doing all the groundwork) went away and has now returned. Horrible man from my earlier dealing with him. He was the one who announced to me (month ago) he had received permission from the freeholder to use the garden.

      A few days ago, we got a note throught the door to say that unless I produce 'proof' of ownership in a week (something he's always banging on about) that he intended /going into the garden to tidy it up, moving our flower pots etc and trimming some of the plants!' I'll admit we haven't had much of a chance this year to do some work needed and had moved a lot of pots nearer to us for watering. The only thing I had a chance to ask him before he sped off was why, if the garden was part of the sale of the flat did he request permission from the freeholder to use it? He looked really stumped by thiis and didn't know what to say! Interesting that....Last time as well, he kept saying I can't take over what is 'communal land', which of course I know it isn't , so I would ignore that comment everyone.

      So now, bearing in mind (according to him) he has permission to use it, can I still stop him from going in (which I intend to). Of course I will not let him touch any of our property etc etc. This man comes across as having no consideration at all for our position and is determined to get his hands on this piece of land for what I get the feeling is more for financial advantage than anything else.

      So what to do? All help appreciated.

      PS I will be submitting an application to have it registered with Land Registry.

      Comment


        #33
        The main thing to to do is obviously to get on and make an application to the Land Registry. I recommned employing a conveyancer, but make sure s/he is well up on adverse possession.

        Until you get registered you will not have any proof of title other than the fact of possession. The law recognises possession as a "root of title". The position in law is that if someone else claims the land he cannot base his claim on the fact that the person in possession has or appears to have no title. Accordingly, the neighbour cannot demand you prove your title, but rather needs to show a court that he himself has title and that it is better than yours.

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          #34
          Thank you Lawcruncher. This mirrors my own thoughts/stance on this so it's a relief to see you confirm that, again. Trouble is, this guy whether due to 'selective' scewing of info he's picked up (which I suspect is the case as he's literally mad to get his hands on this garden) is refusing to accept any of this thinking at all. (What he's angling at now is that I'm occupying land which is 'communal'.Strangely enough when I first met the son (a far nicer individual) he was fully cognisant of this type of situation. So I think he's not as daft as he appears to me. I know one thing though-I certainly don't trust him and I find his behaviour rather harrassing. On the other hand how potent his is claim he obtained permission for the freeholder?

          Oddly enough though, during our last 'conversation' if you could call it that as he's not someone one can reason with only seeing his own POW, it was apparent he had some doubts about it all ie saying things like if it does turn out to be yours etc.

          Yes, we must get on with our application. Out of interest will the LR consult him as an interested party in all of this, in the same way they will write to the freeholder?

          Thanks again!

          Comment


            #35
            Originally posted by Palomino View Post
            On the other hand how potent his is claim he obtained permission for the freeholder?
            The landlord could grant him permssion to use your kitchen, but he would not be able to exercise it. If the land is now part of your demise the landlord cannot now grant new rights over it.

            Originally posted by Palomino View Post
            Out of interest will the LR consult him as an interested party in all of this, in the same way they will write to the freeholder?
            Possibly. If they do and he wants to object he will have to show he has grounds. He will not be able to browbeat the LR into submission.

            Comment


              #36
              Draft and sign a statement of truth regarding when you took possession of the property adjacent to your flat.

              Quote in that statement that more than 12 years had elapsed prior to October 2003 when the Land Registration Act 2002 became operative.

              Point out that after 12 years Section 15 Limitation Act 1990 prevented the legal owner from reclaiming possession and section 17 then served to extinguish the legal title.

              Look up the words used in the Limitation Act using a Google Search for Limitation Act 1980 and copying the two sections.

              Add a number of sentences specifically dealing with the neighbours claim now being made that he has been granted permission from the Landlord to use this land.

              Make it clear that since the Landlord's title was extinguished by Section 17 LA1980, any permission now given has no legal validity, since you are the current legal owner due to a confirmed period of exclusive possession with the intention to prevent anyone else from accessing the land, which satisfied the legal requirements as set out by legal authority.

              Present a copy of the Statement of Truth to this neighbour's father and inform him that you will take legal action if he attempts to enter your property, since that will be an unlawful trespass.

              Use the Statement of Truth, with the part about the neighbour removed, with an immediate application to Land Registry to have the land registered in your name as an extension to the land demised by your current lease.

              That is how the matter will be dealt with by Land Registry because as a tenant you have added that land to your tenancy, rather than acquiring a separate freehold title to it.

              Comment


                #37
                The advice given in post 36 is not wrong, just not applicable to this case as the land encroached on belongs to the landlord and is used as an extension of the demise. In such a case the occupation is not deemed adverse to the landlord, but the tenant can include the land in his demise following Smirk v Lyndale Developments Ltd:

                If a tenant occupies land belonging to the landlord but not included in the demise, that land is presumed to be an addition to the land demised to the tenant.

                Comment


                  #38
                  Whereas the Landlord would initially have had an unencumbered Freehold title; after 12 years of adverse possession by the tenant the effect of Section 15 of the Limitation Act 1980 would prevent the Landlord from seeking court action to repossess the land.

                  The Landlord would then have a freehold reversion meaning that possession can only revert back to the Landlord as an unencumbered freehold title after the term of the lease enjoyed by the person in adverse possession has ended.

                  That original Leasehold title will thereafter include the additional parcel of land under the same terms as the original lease set out.

                  Comment


                    #39
                    If a tenant encroaches on land adjoining his demise there are three possibilities:

                    (a) The land does not belong to the landlord. In that case the tenant is deemed to be in possession on behalf of his landlord. When the lease ends the landlord can claim possesson of the additional land. According to whether the land is registered or unregistered sections 96-98 and schedule 6 of the Land Registration Act 2002 or section 17 of the Limitation Act 1980 apply.

                    (b) The land belongs to the landlord and the tenant occupies it for some purpose unconnected with his tenancy. In that case the tenant can acquire title against the landlord by adversion possession. According to whether the land is registered or unregistered sections 96-98 and schedule 6 of the Land Registration Act 2002 or section 17 of the Limitation Act 1980 apply.

                    (c) The land belongs to the landlord and the tenant occupies it as an extension to his demise. In that case the tenant is not in adverse possession. Accordingly, neither sections 96-98 and schedule 6 of the Land Registration Act 2002 nor section 17 of the Limitation Act 1980 apply. However, as mentioned above, Smirk v Lyndale applies and the land is presumed to be an addition to the tenancy.

                    The facts as set out by Palomino very strongly suggest that in his case it is (c) which applies. However, it is important that he gives the full facts to a conveyancer to make a proper assessment so that the application to the LR is made on the correct basis.

                    Comment


                      #40
                      One point that seems to have been overlooked above - you can't make a freehold adverse possession application against your freeholder.

                      You can however make a leasehold adverse possession application and if successful this land will be added to your leasehold title.

                      Comment


                        #41
                        Originally posted by Lawcruncher View Post
                        (c) The land belongs to the landlord and the tenant occupies it as an extension to his demise. In that case the tenant is not in adverse possession. Accordingly, neither sections 96-98 and schedule 6 of the Land Registration Act 2002 nor section 17 of the Limitation Act 1980 apply. However, as mentioned above, Smirk v Lyndale applies and the land is presumed to be an addition to the tenancy.

                        The facts as set out by Palomino very strongly suggest that in his case it is (c) which applies. However, it is important that he gives the full facts to a conveyancer to make a proper assessment so that the application to the LR is made on the correct basis.
                        Thank you so much everyone for your input. I read the responses yesterday but couldn't log in to reply myself.

                        Yes, Lawcruncher (c) above most definitely applies to our situation. The land is registered to the freeholder-although I don't know from when exactly, it most definitely is now. I've looked it up and I know, from what he said the father has too, because he referenced the fact it is still owned by the freeholder.

                        Now, in addition I hadn't realised that the Limitation Act 1980 doesn't apply here.Does it have any bearing on our case AT ALL (not familiar with Smirt v Lyndale case ) as in terms of giving us a stronger one etc? I guess I was basing a lot of my stance om on this notion, so to speak ie we already 'had' it and it was just a matter of applying to have it registered. Incidentally, had I fully realised this and knew more in Aoril when I first posted, I could have done so before he applied for permission.

                        So now that he's applied and according to him received permission to use the garden, will this have a negative impact on my application to Land Registry? I know if he's consulted he'll likely stop at nothing to get it. Quite opportunistic and ruthless.

                        Someone suggested I contact the freehold to request they rescind on this given I intend making an application to have it added to my demise?

                        I fully take on board what you're suggesting about consultling a licenced conveyancer Lawcruncher.

                        Thanks again everyone. Really appreciatdeand need all the help with this as it's new and we're still getting our heads around it.

                        Comment


                          #42
                          The landlord could grant him permssion to use your kitchen, but he would not be able to exercise it. If the land is now part of your demise the landlord cannot now grant new rights over it.

                          Now this is the bit that rather confuses me (and it's very relevant given the current 'threat' in the note by the neighbour) does this apply NOW given we hadn't yet submitted our application to L Registry? Before we do this where do we stand?

                          You mentioned 'browbeating' - this is exactly what they guy is trying to do to us here!




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                            #43
                            Originally posted by Lawcruncher View Post

                            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.
                            Right, I've just been re-reading the whole thread. If you mean that all 4 leaseholders were officially told they now had an additional strip of land added to their existing communal area, then no this was definitely not the case. The only person who used it was our predecessor. Indeed, owing to the layout of the official communal garden (located directly behind the other block) nobody every showed any interest in it, either.

                            Comment


                              #44
                              Originally posted by wfd_property View Post
                              One point that seems to have been overlooked above - you can't make a freehold adverse possession application against your freeholder.
                              You can in case (b) set out in post 39.

                              Originally posted by wfd_property View Post
                              You can however make a leasehold adverse possession application and if successful this land will be added to your leasehold title.
                              There are two distinct things:

                              A grants a lease to B and later C takes possession. C is not in adverse possession against A because A has no right to possession in the sense of occupation. C is though in adverse possession against B and if in possession long enough can "make a leasehold adverse possession application." When the lease ends A is entitled to possession.

                              A grants a lease to B and B encroaches on adjoining land belonging to A which he uses as an extension to his tenancy. In this case the law says that the possession is not adverse and accordingly B cannot "make a leasehold adverse possession application." He can though apply to have the land registered as an extension to his lease. When the lease ends the landlord is entiled to possession of both the land originally demised and the land encroached on.

                              Comment


                                #45
                                Originally posted by Palomino View Post
                                The land is registered to the freeholder-although I don't know from when exactly, it most definitely is now.
                                When the land was registered is not relevant here.

                                Originally posted by Palomino View Post
                                Now, in addition I hadn't realised that the Limitation Act 1980 doesn't apply here.Does it have any bearing on our case AT ALL


                                No.

                                Originally posted by Palomino View Post
                                So now that he's applied and according to him received permission to use the garden, will this have a negative impact on my application to Land Registry?


                                No, because either the landlord had the right to grant permission or he did not. It seems he did not.

                                Originally posted by Palomino View Post
                                Someone suggested I contact the freehold to request they rescind on this given I intend making an application to have it added to my demise?


                                Bad idea. It amounts to conceding that the landlord had the right to grant the permission. Contact no one for any reason!

                                Originally posted by Palomino View Post
                                I fully take on board what you're suggesting about consultling a licenced conveyancer Lawcruncher.


                                For the record by “conveyancer” I mean solicitor, licensed conveyancer or chartered legal executive.

                                Originally posted by Palomino View Post
                                The landlord could grant him permssion to use your kitchen, but he would not be able to exercise it. If the land is now part of your demise the landlord cannot now grant new rights over it.

                                Now this is the bit that rather confuses me (and it's very relevant given the current 'threat' in the note by the neighbour) does this apply NOW given we hadn't yet submitted our application to L Registry? Before we do this where do we stand?


                                The position is not changed.

                                *

                                I think you have got to the stage where, for you own peace of mind, you need to stop mulling this over and get on and instruct a conveyancer and let him worry about the detail of the law. Do not worry about what the landlord or any other leaseholder may do until they do it. The bottom line is that you need to bring matters to a head and the way to do it is to make an application to the LR. You can refer your conveyancer to this thread as an aide-mémoire.

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