Neighbour created 'new' drive and I think I can stop them...

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    #16
    Do you know who the owner of this bottom bit is?

    Is it the same party they purchased from?

    Comment


      #17
      The land you are wanting to possess.

      Do you already have a right to pass and repass over it?

      Comment


        #18
        Hi

        No the original landowner who sold to the neighbours didn't own this parcel of land. It is unregistered with no obvious evidence of previous ownership.

        I have three options I can think of.

        1.Claim adverse possession now based upon my grandfather's and now my maintenance of that parcel of land. Regularly drained, graveled, gas mains and drainage runs through it. Downside is that because neighbours have now started to use it, an adverse possession claim now might be more difficult.

        2. As land is unregistered, I could claim prescriptive easement for my property and tenant. But then having a right of way is not as good as having the land.

        3. Fence and gate unregistered land to begin adverse possession claim (12 years). Guaranteed ownership to prevent future access issues to my property and nip and difficulties arising through shared use of drive. Neighbours won't like it, but I'll be aiming to rent this house for another thirty years...

        Cheers

        Robby

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          #19
          Originally posted by wfd_property View Post
          The land you are wanting to possess.

          Do you already have a right to pass and repass over it?
          No there are no rights to pass and repass over the land I wish to possess. Only pass and repass over land neighbour has now bought.

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            #20
            Hello everyone,

            I appreciate your help. It seems from your questions and responses that there is no real problem with me claiming this unregistered land and preventing neighbour from accessing it.

            If they attempt to prevent me from accessing the registered land I can claim adverse possession based upon historical evidence. I am now going to act upon that by fencing this land in. I'm sure they won't like it - not because they can't access their garden (they still have their three drives) but because they've been outfoxed.

            I was told by an ex-policeman that if you are going to take adverse possession you just need to be bold about it. Once you've fenced it in, there is very little that can be done. He said most people are too afraid to do it because they fear what might happen instead of focusing on the very clear application of law.

            Cheers,

            Robby

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              #21
              Originally posted by Robby2001 View Post
              Hello everyone,

              I appreciate your help. It seems from your questions and responses that there is no real problem with me claiming this unregistered land and preventing neighbour from accessing it.

              Cheers,

              Robby
              WTF? Who's advice was that then?

              Comment


                #22
                WTF? Who's advice was that then?[/QUOTE]

                Why so rude? No-one has advised that...but then no-one has given any specific reason as to why this can't be done.

                Cheers,

                Robby

                Comment


                  #23
                  I suspected all along that whatever was said here, or anywhere else, you were just going to cherry pick what you wanted from the answers and go ahead anyway.

                  Of course there is a problem with you "claiming this unregistered land and preventing neighbour from accessing it."

                  For one thing you are going to seriously p*** off the neighbour.

                  I feel sorry for your tenant who is now going to find himself in the middle of a 'battle' between you and the neighbour.

                  I feel less sorry for your bank balance when the legal fees start mounting, you will have brought it on yourself.

                  Again- sort this out by discussion without taking rash action that could start a long, protracted, dispute.

                  PS.
                  Form what you have told us the neighbour has as much right as you to fence off this land. What are you going to do if he gets his fence up first?
                  (I suspect you would be straight on a forum asking for help to show that his fencing of the land was illegal).

                  Comment


                    #24
                    "Cherry pick"?

                    As yet no-one has been able to confirm any legal issues, legal precedents, share relevant experience or specify any potential legal problems.

                    "Of course there is a problem" [with me claiming unregistered land] because I'm "going to seriously p*** off the neighbour."

                    Really? I asked the question if there were any likely legal problems/registry problems based upon adverse possession of this land.

                    "I feel sorry for your tenant"

                    I thought it was clear that the neighbour has already made life difficult for the tennant (as well as many others in the village). I intervened after the tenant had explained their difficulties and realised that this had the potential to be a long-term problem if I wanted to rent long-term.

                    You feel "less sorry for my bank balance" as I "will have brought it on myself".

                    Again. Why? You are suggesting a fiercely contested legal dispute. I have not yet heard any legal argument from this forum that supports why this would be the case. What is it that I will have brought upon myself? Why the scaremongering over my bank balance? You are not telling me why this would be a likely scenario.

                    The neighbour clearly does not have as much right as me to fence off the land! I have already explained I currently feel that I have enough evidence to already claim adverse possession over the unregistered land and would be able to object to the Land Registry as such if the neighbour fenced it. Also, I have already explained that I can at least evidence prescriptive rights going all the way back to my grandfather's ownership of the house. The new neighbours can't do either.

                    The way I see it from my own further discussions and reading up on adverse possession I can already make a claim for it and if not begin the claim by fencing it. This can be communicated to the neighbour by a solicitor's letter as the gate goes up. They will not like it because they are the type of people who like to tell everyone else what to do. However, there is evidence and a history over the unregistered land that supports my ownership of it over the neighbours.

                    So to go back to my original question about claiming this unregistered land...the only reason anyone has so far been able to suggest as why this isn't possible is that I may "p*** off" a neighbour who has already "p****d-off" my tenant and me!

                    Does anyone actually have a legal perspective on this based upon their experience? If someone can explain from a legal perspective why this is doomed to fail I am more than happy to act upon it. Nukecad suggestion that I am only hearing what I want to hear is just plain wrong. As yet no-one has been able to state in any way why I can't do this. If they can I will listen with great interest! I'm not going to put myself in an awkward legal/financial position if it appears to be a dangerous move.

                    Cheers,

                    Robby

                    Comment


                      #25
                      Originally posted by Robby2001 View Post
                      If someone can explain from a legal perspective why this is doomed to fail I am more than happy to act upon it.
                      We are not lawyers. You need to pay to see a solicitor if you want proper legal advice.

                      Comment


                        #26
                        Originally posted by Robby2001 View Post
                        The way I see it from my own further discussions and reading up on adverse possession I can already make a claim for it and if not begin the claim by fencing it. This can be communicated to the neighbour by a solicitor's letter as the gate goes up.
                        If you are getting a solicitor to write a letter, then I would expect that solicitor to determine that you are acting lawfully.
                        Therefore the answer seems to be "talk to your solicitor to determine if you can lawfully do what you are suggesting" and, if you wouldn't mind, posting back here your solicitor's opinion.

                        Comment


                          #27
                          Have only just read through this thread, but it does seem that there are a number of valid points to be discussed.

                          If I have understood this correctly it has always been necessary to pass over the unregistered land to access the drive. which is why a fence around the unregistered land will prevent this from happening in the future.

                          Robby as owner of the cottage had a right of way granted over this drive.

                          Is it necessary to drive over the unregistered land to get to the drive?

                          If Robby cares to answer that question I can then attempt to offer an assessment of the legal position should Robby claim to be in adverse possession of the unregistered land.

                          Comment


                            #28
                            Hi Pilman,

                            As far as the search of the index map states, this has been unregistered land. This means that when my grandfather was the owner of the property, he was crossing this strip of unregistered land to access the drive (which he didn't own) so he could use the right of way over it to the garage at the bottom.

                            Since I've had ownership the same process has continued.

                            With the neighbours now purchasing the land and now using it to access the drive down to their new hardstanding, they are now also crossing the unregistered land.

                            I believe that there is already enough evidence to claim adverse possession based upon the decades of use and maintenance. I want to clarify if fencing this off to assert that right would be deemed inappropriate or as acting lawfully.

                            I hope that I've explained that well enough Pilman.

                            Cheers,

                            Robby

                            Comment


                              #29
                              I believe that there is already enough evidence to claim adverse possession based upon the decades of use and maintenance.
                              The only evidence provided so far is that the sole use of that unregistered land was as an access to the drive.
                              That does not meet the legal requirement to support a claim to be in adverse possession of that land with exclusive possession with the intention of excluding all others including the true legal owner.

                              All you have been able to prove is that a right of way has probably been created over the unregistered land for the benefit of the land used as a drive, which you have never owned.

                              The fact that your property was granted a right of way over the drive by its previous owner to allow access to a garage located on your property would also imply that the drive owner had acquired a right of way over the unregistered land, otherwise how did he access the drive without crossing this unregistered parcel of land.

                              The only strange thing about this case is that the drive itself would be the only parcel of land that would have the benefit of a prescriptive right of way if more than 20 years use of the unregistered land can be proven.

                              In that case the grant made to your property cannot be one permissible under English law. Such a grant made your garage the dominant land, although the Grantor would have only has an easement over the unregistered land to access his drive, which would have been the sole dominant tenement recognised by law as benefiting from a right of way of the unregistered parcel of land.

                              What follows is a quote from a court case decided in 1904 which is the legal authority for the circumstances being described by you.
                              “If a right of way be granted for the enjoyment of Close A, the grantee, because he owns or acquires Close B, cannot use the way in substance for passing over Close A to Close B.”
                              Lord Justice Romer in Harris v Flower (1904) 74 LJ Ch 127


                              That would mean that only the drive can be lawfully accessed using a right of way over the unregistered land.
                              Neither your property nor the property next door can lawfully be accessed using that drive.

                              The phrase that comes to mind is "what a mess" but here you are intending to try and fence off this unregistered land to begin a period of actual adverse possession, although you can only prove access over this land for a lengthy period of time.

                              You had better hope that the neighbour is not able to employ a competent solicitor should you go ahead and try and fence off the access to his drive.

                              Your own right of way is suspect under the rule of Harris v Flower, so you could lose the ability to access the garage by driving over the drive now owned by the neighbour.

                              In fact all the neighbour can lawfully do is to park a car on the drive, in order to walk back over the drive and over the unregistered land to then reach the public highway to walk to another entry point onto his own property.


                              if he parked a car on the drive and then directly accessed his own property that would be a breach of the rule in Harris v Flower, although only the legal owner of the unregistered land could begin legal proceedings to stop that happening.

                              In your case it is the owner of the drive that could start proceedings for a ruling by the court that the grant to you, whenever it was made was not a lawful grant and that you have no right to use the drive at all.

                              I think the only way to end this posting is to say to you "Be careful what you wish for"
                              An attempt to stop the new owner of the drive from using it to access his own land may result in the new owner of the drive stopping your use of that drive.

                              Comment


                                #30
                                Wow! This is very interesting Pilman and exactly the type of discussion I was hoping to have on this forum. I think there are a few additions I could add to your comments that may or may not provide additional perspective.

                                The only evidence provided so far is that the sole use of that unregistered land was as an access to the drive.
                                That does not meet the legal requirement to support a claim to be in adverse possession of that land with exclusive possession with the intention of excluding all others including the true legal owner.
                                All you have been able to prove is that a right of way has probably been created over the unregistered land for the benefit of the land used as a drive, which you have never owned.
                                Historically this unregistered land has been maintained as part of the land that I do own to the front and side of the cottage. My grandfather maintained it and it has been continued by me. This involved significant maintenance in terms of regularly levelling, digging, gravelling, and weeding as may land is formed at the end of the public highway. As it has no surface drainage this land also contains a French drain from the guttering and downpipe. This is also regularly maintained. It was for exclusive possession and had been for all of those years. It is only since the neighbours moved in last year that they have now started to walk across it. This was why I though enclosing it would protect that historic exclusive possession or begin an 'obvious' form of adverse possession because of the fence.

                                The fact that your property was granted a right of way over the drive by its previous owner to allow access to a garage located on your property would also imply that the drive owner had acquired a right of way over the unregistered land, otherwise how did he access the drive without crossing this unregistered parcel of land.
                                Not quite true and also confusing! The original drive owner never accessed the drive over the unregistered land! Their farm is directly behind my rear cottage garden and the garage. So somehow they must have acquired that land as part of the farm. The cottage is 120 years old so I think the drive must have belonged to the cottage at some stage but cannot find evidence to prove this. The farm is 70 years old, so unless there was some other property there before the farm I cannot think of why it would be accessed by the side of the cottage. The current farm has entry from a main road at the other side of the village. Interestingly when going through my grandad's old documents I cam across a very old photograph that shows a large gate hung at right angles at the entrance to my land from the highway. This is hung across what would have been a large section of the current unregistered land. My grandfather had never mentioned it before and in my lifetime (25 years) it has not been there at all...

                                The only strange thing about this case is that the drive itself would be the only parcel of land that would have the benefit of a prescriptive right of way if more than 20 years use of the unregistered land can be proven.
                                I'm not sure I understand this pilman. Sorry for being a bit dim here. Do you mean I could benefit from a prescriptive right of way over the unregistered land? The original covenant states that the cottage already has a right of way over the drive (now neighbour's land - used to be farmers)

                                In that case the grant made to your property cannot be one permissible under English law. Such a grant made your garage the dominant land, although the Grantor would have only has an easement over the unregistered land to access his drive, which would have been the sole dominant tenement recognised by law as benefiting from a right of way of the unregistered parcel of land.
                                The land that the garage sits on is mine and that land is connected to the rear garden. The garage essentially forms a boundary along with the back of the garden to the farm behind. There is a covenant clearly stated in the deeds and shaded on the title map that I have right of way over the neighbours drive. What is not clear is if a RoW exists over the unregistered land. In part this is because everyone has always assumed that the land always belonged to the cottage. No-one but my grandfather had ever used that unregistered land to get to the drive and down to the garage.

                                What follows is a quote from a court case decided in 1904 which is the legal authority for the circumstances being described by you.
                                “If a right of way be granted for the enjoyment of Close A, the grantee, because he owns or acquires Close B, cannot use the way in substance for passing over Close A to Close B.”
                                Lord Justice Romer in Harris v Flower (1904) 74 LJ Ch 127


                                That would mean that only the drive can be lawfully accessed using a right of way over the unregistered land.
                                Neither your property nor the property next door can lawfully be accessed using that drive.
                                I've read and re-read the above pilman. I'm clearly being dim again. If I have a registered right of way over the neighbour's land which has always been used as a drive down to the garage which is within my garden boundary why would I not be able to enjoy that right of way? Is this because neither of us own the unregistered land? So by crossing the unregistered land I am unable to enjoy the benefits of the right of way down to the garage? I can only use the drive and not park in the garage in the garden to then access my property? If this is the case I agree with your phrase of "what a mess!" However, if I did take ownership through adverse possession would this affect the use of the right of the way still? If I 'owned' the unregistered land am I not able to cross 'my land' to use the right of way? Does this not strengthen the argument for taking adverse possession or is that irrelevant based on Harris and Flower?

                                This is really very interesting!

                                You had better hope that the neighbour is not able to employ a competent solicitor should you go ahead and try and fence off the access to his drive.
                                Is that because I would be impeding his right of way? But if he doesn't own the unregistered land or have a prescriptive right of way over it, I am not sure why a solicitor would feel they could intervene. Is that because you feel they could start proceedings to state the the right of way when granted was not lawful? Therefore you are suggesting caution based on a tit-for-tat style dispute?

                                Your own right of way is suspect under the rule of Harris v Flower, so you could lose the ability to access the garage by driving over the drive now owned by the neighbour.

                                In fact all the neighbour can lawfully do is to park a car on the drive, in order to walk back over the drive and over the unregistered land to then reach the public highway to walk to another entry point onto his own property.


                                if he parked a car on the drive and then directly accessed his own property that would be a breach of the rule in Harris v Flower, although only the legal owner of the unregistered land could begin legal proceedings to stop that happening.
                                This would suggest nothing but trouble for my tenant if the neighbour feels that they can do this!

                                Pilman - thank you for some very interesting points to consider here. It is quite worrying from what you suggest that the neighbour could dispute the use of an established right of way that already exists as an historic covenant. It is crazy to think that this small parcel of unregistered land could have such an impact!

                                You have given me a lot to think about. I really appreciate your input.

                                Cheers,

                                Robby

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