Adverse Possession of Land adjoining Leashold Flat

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  • pilman
    replied
    Placing a locked gate to prevent anyone else from entering that plot of land is further evidence of an intention to have exclusive possession.

    You should do that as soon as possible.

    Leave a comment:


  • Palomino
    replied
    Whew! Thanks again Lawcruncher. As long as I can do that, then of course I'll have no compunction in doing so. All I need to know really. Should I take the precaution of blocking up the entrance? I don't want this going against me at a later point. I've asked someone to come round for a quote(for a gate) but until then?

    Since the weather here has turned out so much better than forecast yesterday (rain all day!) I just wanted to be prepared.

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  • Lawcruncher
    replied
    If he goes on the land tell him you will call the police and then call the police.

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  • Palomino
    replied
    Originally posted by Lawcruncher View Post
    Just to repeat, do not get into discussions with anyone except your own lawyer.
    No, of course not! Can't 'discuss' anything with this individual anyway.

    However, surely I'm entitled to prohibit him from entering the garden and moving our pots, cutting back shrubs etc etc. This is what I was getting at really, not entering into the legalities of things (which he clearly doesn't appear to 'get' anyway) at least not in terms of how you guys have all explained it here, which of course, I fully accept. He appears to have his own particular 'take' on things- where he's! getting it from, I've no idea.

    I mean seriously though, what if, for example I find him in there, carrying out his threat? Surely I can request him to leave?

    This guy would I fear, stop at nothing to get what he wants!

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  • Lawcruncher
    replied
    Just to repeat, do not get into discussions with anyone except your own lawyer.

    Leave a comment:


  • Palomino
    replied
    Ignore. If you respond, all you will be doing is showing your hand, and if you inadvertantly say something silly, then this whole application could fail.

    If by showing my hand you mean making the application to LR, then (in the light of recent events) I'm fairly sure, though never explicit of course, this is what he's been waiting for all along. This is the 'proof' he's been referrring to and waiting for. It also appears this is what has been holding him back. Now, since he's becoming impatient to implement his 'permission' to use the land himself and it looks as if he views the absence of proof ass ome sort of sign he can go ahead! Hence the threat to enter, having asked me for 'documentation' to prove ownership on several occasions -simoly not true. Now the week is up this is what he's going to do. Of course this has only become clear to us now.

    All I was going to do was dispute a few things such as requesting documentation on several occasions. Completely untrue for starters.

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  • wfd_property
    replied
    Originally posted by Palomino View Post
    it's just a case of knowing what I can and cannot do!! Should I as well, respond to the note he left? There are quite a few inaccuracies I'd love to point out (!) or should I just ignore it?
    Ignore. If you respond, all you will be doing is showing your hand, and if you inadvertantly say something silly, then this whole application could fail.

    Originally posted by Palomino View Post
    Thanks again, all this helps us so much! Out of interest, how much would this all cost?
    Hard to say. Few/several hundred pounds, unless of course your solicitor starts having to reply to various silly letters.

    Leave a comment:


  • Lawcruncher
    replied
    Originally posted by Palomino View Post
    In addition, one solicitor I managed to speak to a month ago (when I did manage to get someone to call me back eventually) felt this granted permission might impede our case/lessen our chances of succeeding with it.
    If there is an objection it will necessarily hold up the application.

    Leave a comment:


  • Lawcruncher
    replied
    The reason why the Limitation Act 1980 does not apply is set out in paragraph 8 of Schedule I to the Act. The effect of the paragraph is summarised in the cross heading: Right of action not to accrue or continue unless there is adverse possession. The courts have decided (as confirmed by the extract you quote) that "a tenant cannot acquire title against his landlord by adverse possession during the currency of the tenancy."

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  • pilman
    replied
    Not wishing to confuse the Original poster, but why is it being stated that the Limitation Act does not apply when a tenant takes possession of land owned by the Landlord.
    Section 15 of the Act stipulates that after 12 years no legal action can be started by the owner of the freehold to evict the person in possession,
    Surely the tenant is such a person in factual possession after 12 years of exclusive possession can be shown to have passed.

    Looking at cases on BAILII web-site using the search phrase "Smirk v Lyndale Developments Limited" the first three cases were from England and Wales Land Registry Adjudicator.

    All three were headed "Landlord and Tenant"

    This a quote from Graham Ernest Powney v Bristol City Council (Adverse possession : Landlord and tenant) [2005] EWLandRA 2004_0664 (19 September 2005) The landlord and tenant point

    21. Since I have found that the Applicant has demonstrated factual possession and intention to possess for a continuous period of 12 years, the matter would end there were it not for an additional point raised by the Respondents. They refer to the well established principle that a tenant cannot acquire title against his landlord by adverse possession during the currency of the tenancy. If the tenant encroaches on land belonging to the landlord outside the demise then the land is presumed to be an addition to the tenancy and the tenant’s title to it expires with the tenancy. This principle applies even if the land is not joined to the demised premises. See Smirk v Lyndale Developments Ltd [1975] Ch 317 and Long v Tower Hamlets LBC [1998] Ch 197.

    An application to Land Registry to be registered is dealt with in the same way as a claim of adverse possession is.
    That it is the exclusive use for more than 12 years that has to be proven by evidence provided by the applicant.

    Then the matter is decided in favour of the tenant who thereafter has this additional land included in to the demise of the original lease and remains as part of the demise for the full term of the lease.

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  • Palomino
    replied
    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.

    I completely agree with you Lawcruncher (and thanks again) and I'm most anxious to do this, but it's just getting an understanding of it all first and getting it straight in my own head of where we stand etc etc. I hate not having a reasonable grasp of it all.

    Interesting enough, it was the Leashold Adv Service who advised contacting the freeholder first to revoke the permission first before proceeding, though they did concede they were not experts. However, they did provide guidance about apply to have it added to my demise very much in line with what you said!

    In addition, one solicitor I managed to speak to a month ago (when I did manage to get someone to call me back eventually) felt this granted permission might impede our case/lessen our chances of succeeding with it. For the record I did put in a lot of time and effort into dealing with this then but then the father went away and things calmed down a bit. Other demands needed our attention as well.

    Do not worry about what the landlord or any other leaseholder may do until they do it.

    Believe me the very last thing I want (or need right now with so much else gong on as well) is this guy getting any access to the garden in any shape or form!! The person is quite ruthless! So should I get the gate reinstalled again? I really don't mind challenging/confronting him, even though he does make unreasonable demands - it's just a case of knowing what I can and cannot do!! Should I as well, respond to the note he left? There are quite a few inaccuracies I'd love to point out (!) or should I just ignore it?

    Thanks again, all this helps us so much! Out of interest, how much would this all cost?

    Leave a comment:


  • Lawcruncher
    replied
    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.

    Leave a comment:


  • Lawcruncher
    replied
    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.

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  • Palomino
    replied
    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.

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  • Palomino
    replied
    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!




    Leave a comment:

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