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Adverse Possession / boundaries

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philhaden1 | 15:39 Sun 10th Jan 2010 | Law
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Please, please can anyone help. I own a bungalow in Wales that had a hedge to the left hand side. It was narrower at the top, got wider in the middle and the narrower at the bottom so it never ran parallel to the property.

The land the other side of the hedge is grass that is owned by 16 flat owners. The hedge was there for about 40yrs and the flats 30yrs. Initially the flats were leasehold but are now freehold.

They have always cut the grass but never the hedge, even the side that faced them.

I removed the hedge (no issues there) as I own that boundary and placed several posts highlighting where the real boundary is according to deeds and they do not disagree with this, they even had a letter from a Surveyor saying what I had done seemed right.

However, If the boundary now runs parallel then I am taking a piece of land that they have been cutting for the last 30 years. They say that under Adverse possession pre 2003 then it is their's and we have never owned it as we have only owned the bugalow for 5 years.

They say the fence should run in the same sideward V-shape that the hedge followed and should be placed where the roots were.

My plan is to run the fence parallel to the property and therefore claim a piece of the grass that was on the other side ofthe hedge but I have always had access as there was an opening at the top of the hedge that allowed me to wlk on to this land to cut the other side of the hedge. Thye have never fenced it off and I, as well as the public, walk on this land rather than walking the long way around.

They have never formally claimed the land but do you think they would have a claim for AP or should I stand up to these bullies, having been interrogated yesterday.

If they could win the AP claim then are they right in saying the fence should be situated where the roots were, as I maintained all sides.

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...... unless you can tell me that the LR Plan actually shows a hedge on it as a feature, and the boundary drawn on the far side of it, angled away from it.
Question Author
Many thanks and can telly you fully understand the situation now, Very difficult based on emails and the only map you have but I agree with you from what I know and the ' boundary' is the question in my eyes although the paragraph you cut and pasted above, section 2.1 from guidance notes, does provide me with certain unease.

When I looked in to boundaries, before removing the hedge, I thought it was the case that the hedge would not constitute the boundary but could be completely wrong. I will read what you refer to.

On Transitional provisions, I have read about a 3 year rule but cannot see anywhere where it says you must apply by a specified date.

Thank you again.
Phil
Having thought about this during the day, I do believe that you have a boundary definition issue (rather than an AP issue).
Public Guide 19 tells you about LR's 'General boundaries'. If your LR Title Plan shows a black line representing the hedge, then a red line drawn for the boundary OUTSIDE it by a clear margin, preferably angling away as you maintain it is, then you can reasonably argue that the exact boundary is beyond the centre of the hedge. If however the red and black lines are drawn on top of one another, it tends to suggest the true boundary aligns to the hedge. It may be, of course that no black line (representing the hedge) exists. Please can you comment on this.

You will have probably read about 'Determining the Exact Boundaries' in this booklet - this is the process that the LR uses - it is not cheap. However you said earlier in your comments that the 'LR agreed with your analysis' or something similar - what did you mean.

I'll get back onto the AP bit later - I feel it is important we sort out what we have regarding the boundary situation first. Until then we can't reasonably who is claiming what.
Question Author
There is a red line running parallel to my property and then a black line directly next to it on the left. They are not on top of each other but touching each other and no white in between.

Neither line is in the same direction as the hedge as the lines are running parallel but he hedge was angled in at about 25 degrees in to my property. Putting it another way, if you imagine the boundry being 12 o clock the hedge initally ran parallel but the veered off to 2 o clock, hence the land between 12 and 2 o clock.

I have 3 attachments of my LR plan, the flats LR plan title and google map if there is anyway I can get them to you? I know you want to remain anonymous.

The LR said that the lines around my property are mine and she said I would not have an issue with putting a fence where the lines were as that is my property even though the hedge was at an angle. It was the parallel lines that is my boundary but she would not confirm whether the hedge could be viewed as the boundary line as this would be ealt with by a solicitor.
Question Author
I think I may have found a reason why the hedge initially ran parallel and then off at an angle.

There is a man hole cover so I assume that when the hedge was planted they came across this and couldn't run it over it so planted it to the side. It is only a thought,

The other point is that the path at the side of my bungalow that we walk along to enter the main door runs at the same angle as the hedge. Not sue if this has any relevance but thought I would let you know.

Kind Regards
Phil
Over the weekend I looked at the transition rules for making a claim by AP on registered land but using the claim that a minimum number of years of AP existed prior to October 2003 (when the new law came in). You have said that your land is registered and always has been since before 1970. So the claimant would have to show at least 12 years prior to October 2003 (which based on what you indicated, they have). The other parts about demonstating AP relate to having 'factual possession' - meaning 'single and exclusive possession' - which it appears to be doubtful that they could successfully claim. You will note that fencing is regarded as strong evidence of possession. And here lies an issue because there is no fence across the boundary that you allege.
Which leads me back to feeling that issue is actually about defining where the boundary is (as per Public Guide 19). The LR may have told you verbally over the phone that you can put a fence around your boundary - and that is true, but there is no clarity on where this boundary actually lies.
So to me, it seems the choices that you have are:
a) Do nothing - in which case the land the other side of the old hedge becomes there's by default
b) Involve a solicitor and a surveyor in using the LR process called 'determining the exact boundary'. This results in positions of boundary posts being determined by review and consideration of all the evidence but will cost you money. I cannot say whether you will win - the evidence that the red boundary line runs parallel to your side wall sounds strong – yet the hedge appears to run at an angle from the air. While you are doing this, you might as well deal with the issue at the rear of your property at the same time. Having done that, it would be the end of the matter - unless they tried to make a claim for AP, which would surely fail because you have been gaining access to the far side of the hedge.
c) Assert your claim by getting a contractor to install a fence along the line. Do it quick - within a day - and install a relatively cheap fence - posts and chain link on a roll, perhaps. When you scale the position off the LR Plan, make sure there can be no doubt that you don't stray over the line - even if it means 'losing' a few inches of space versus the Plan. The sit back and see what they do. Take photographs before and after (do this anyway).
d) seek to negotiate an 'agreed position' for the boundary with them directly. It probably will result in compromises on both sides from what they claim versus what you claim. This would be cheap (free).
Bear in mind that when you eventually do sell your property, disputes with neighbours is a standard question that is asked. And that may put a future buyer of your house off.
Question Author
Thank you for your reply and apologies as I have been away on work so unable to reply.

I am inclined to proceed with point b althoguh my concern is the cost as I have no insurance and they do, one oner also said he would cover the costs as well. I feel I may be risking too much for too little land at the end of the day and feel I am backed in to a corner.

I was also speaking to a friend who has dealt with a lot of property purchases and he said basically what you have said in that on paper it shows one thing but in reality it is different. I am pretty sure we would not lose an AP claim but my concern is in PG19 where it says the boundary line may not be the same line as shown on the plan.
I find it hard to believe that a V-shaped hedge could be seen as the boundary when it is shown as a straight line runngin parallel but I assume it could due to the time it has been like it and therefore is now deemed to be the default boundary.

I do not think they are willing to negotiate but plan to write to them as they have not written to me following my discussions with them and will propse we appoint a joint surveyor and then go by what their report says.My concern at this point is that they will probably not agree and what do I do from there if I do not want to run the risk of huge costs.

I will try not to bother you again as I know you have taken alot of time to help me and I cannot underestimate how appreciative I am. If you are looking for a cheap break in Aberdovey then just email me on [email protected] and I will sort you out..

Thanks again and I will let you know how I get on.
OK, just to let you know that I've seen this reply.

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