Adverse Possession of land which has a Right of Way

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  • Adverse Possession of land which has a Right of Way

    A friend has a strip of unregistered land directly alongside his house, owner unknown. It has gates from the street and leads to my friend’s garage which he has never used as such. A neighbour has a pedestrian right of way over the land to the rear of her property. My friend has maintained the strip of land for the 25 years he has lived there.

    My friend is considering applying for adverse possession. Would this be compromised at all by the existence of the right of way?

    Would he have to show evidence of having tried to trace the current owner (presumably a descendant of the original owner) despite having been ‘in possession’ for over 25 years?

  • #2
    Problem: has friend had exclusive occupation?
    There's no need to trace the true [documentary-title] owner. In fact, doing so can sometimes amount to acknowledging that ownership, a step fatal to any claim for possessory title at HMLR.
    JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
    1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
    2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
    3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
    4. *- Contact info: click on my name (blue-highlight link).

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    • #3
      Originally posted by jeffrey View Post
      Problem: has friend had exclusive occupation?
      I would say he has had exclusive occupation - has maintained it, had drains cleared, laid slabs, planted shrubs, grass etc. - but not exclusive use, in that the neighbour is entitled to pass across it to & from a small gate at the rear of her property. But I'm assuming that his acquiring the title would not affect her right of way. My question was whether the right of way would affect his right to acquire what is - for all intents and purposes - part of his property.

      Comment


      • #4
        But, you see, it is not [yet] part of his property. Access over it by the neighbour might present a hurdle, difficult (although not impossible) to surmount. He'd certainly need confirmatory Declaration evidence from that neighbour, to accompany his own, when applying to HMLR.
        JEFFREY SHAW, solicitor [and Topic Expert], Nether Edge Law*
        1. Public advice is believed accurate, but I accept no legal responsibility except to direct-paying private clients.
        2. Telephone advice: see http://www.landlordzone.co.uk/forums/showthread.php?t=34638.
        3. For paid advice about conveyancing/leaseholds/L&T, contact me* and become a private client.
        4. *- Contact info: click on my name (blue-highlight link).

        Comment


        • #5
          Originally posted by jeffrey View Post
          He'd certainly need confirmatory Declaration evidence from that neighbour, to accompany his own, when applying to HMLR.
          Would this be a simple declaration from the neighbour renouncing any claim to title of the land?

          Comment


          • #6
            Its called adverse possesion

            I take it your friend has a ROW over this strip and therefore has a legal right to be on it and maintain it.

            Comment


            • #7
              Originally posted by DISCOBOBULATED View Post
              Its called adverse possesion

              I take it your friend has a ROW over this strip and therefore has a legal right to be on it and maintain it.
              Yes, he has a right of way and in theory maintenance costs should be shared with the neighbour who also has right of way. In practice, my friend alone has maintained the land for 25 years while the occupant of the neighbouring property (which changed hands about 5 years ago) merely walks across it occasionally. It is - 'geographically' at least - part of my friend's property. So it would make sense for him to have title too.

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              • #8
                Is this strip of land on the other side of a fence, wall or hedge that forms the boundary of your friend's house?

                Comment


                • #9
                  He has a right of way on this land and a right to maintain ,so how can he claim adverse possession.

                  I'm not one of the legal eagles of this forum , but he cant as far as I'm aware unless one of the more legally educated out there would like to jump in,put me right and educate me . Am i missing something

                  Comment


                  • #10
                    Originally posted by Lawcruncher View Post
                    Is this strip of land on the other side of a fence, wall or hedge that forms the boundary of your friend's house?
                    It is not on the other side of any wall or hedge. The boundary along one side is the wall of my friends house - with door.

                    Comment


                    • #11
                      Long letter

                      He has a legal right to be on this land due to the easement so his occupation cant be adverse

                      He also cant use the fact that he has been maintaining it as evidence towards any adverse possession claim because due to the easement he has a legal right to maintain and the owner has no powers legally to stop him maintaining it.

                      How would the owner know that that he was trying to adversely possess his land due to the above.

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                      • #12
                        Originally posted by longletter View Post
                        It is not on the other side of any wall or hedge. The boundary along one side is the wall of my friends house - with door.
                        So, just to get this right, the strip of land is enclosed within his property?

                        Next question, is there any mention on his title of having a right of way over this strip?

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                        • #13
                          Originally posted by DISCOBOBULATED View Post

                          He has a legal right to be on this land due to the easement so his occupation cant be adverse.
                          He has a legal right to pass over it - surely this isn't incompatible with owning it as well?

                          Originally posted by DISCOBOBULATED View Post

                          He also cant use the fact that he has been maintaining it as evidence towards any adverse possession claim because due to the easement he has a legal right to maintain and the owner has no powers legally to stop him maintaining it

                          How would the owner know that that he was trying to adversely possess his land due to the above.
                          I should think the owner has been pushing up daisies long since and hence couldn't give a monkey's!

                          Originally posted by Lawcruncher View Post
                          So, just to get this right, the strip of land is enclosed within his property?
                          Not exactly but it is enclosed. It is bounded on one side by the the side wall (with door) of his house, and on the other side by the wall of a neighbour who has neither access nor right of passage. Another neighbour does have right of passage over the length of the strip from the street end to the gate to her rear garden at the other end.

                          Originally posted by Lawcruncher View Post
                          Next question, is there any mention on his title of having a right of way over this strip?
                          Yes, the same as the neighbour's but in my friend's case it enables him to enter his house via the side door (!) as well accessing his rear garden without going through the house.

                          Comment


                          • #14
                            I did once try and claim adverse possession of a similar area that had been used in the same way as your friend has been using it.

                            The claim was rejected by land Registry because such use being made of it, which was primarily to drive along it to reach a parking space at the bottom of the garden of the property alongside this track, was considered to be equivocal with insufficient intention to possess the land being established.

                            Your friend's best method of knowing whether his claim will be accepted is to apply for Possessory Title to Land Registry.
                            Using the land as a right of way is normally considered an equivocal use of land not necessarily showing the required legal intent to possess with the exclusion of all others.

                            If the neighbour will agree to sign a statement of truth saying that at all times in the 5 years since they have occupied the neighbouring property, he/she has considered your friend to have been in possession of the land because at all times he treated it as his own, but it was accepted that the neighbour's property had a legal right of way over that land which was exercised because of your friend's knowledge that this was a legal right of way.

                            That is really all he can do besides signing his own Statement of Truth which should be worded in the best way possible to suggest that at all times he intended to occupy the land to the exclusion of all others, except a person with a legal right of way over the land, that he had always demanded to see evidence of, before allowing any such use.

                            He should then hope his application is decided by a Land Registry official in a good mood, although the on-site inspection by an Ordnance Survey surveyor will be needed to establish the situation on the ground.

                            As there are costs involved for the application and the surveyor's inspection, is it worth it if your friend's use of the land has not been interfered with for the last 25 years.
                            What are the benefits of ownership of a possessory title if there are rights of way over the land?

                            Comment


                            • #15
                              I agree with Pilman. If he has a right of way over land that explains his being on it. If he shares that right of way with another that more or less excludes exclusive possession. If he has a right of way over the land no one can do much with it anyway so there is not really a lot to be gained by claiming it. Probably better to spend the Land Registry fee on a case of wine.

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