# Boundary issue over No-Man's-Land at end of garden.



## Dinarius (10 Aug 2005)

We are the corner house on our road.

Running across the end of our back garden (and across the end of all the back gardens on the road) is a strip of land about 20' deep. On the other side of the strip of land, running parallel to our gardens, is the 15' wall of an institution.

This strip of land is unregistered.

On the deeds map of all the houses, it is clearly indicated that the boundary of each property is the end of the garden. However, all of the houses on the road, except ours, have no wall at the end of the garden. In effect, their gardens run to the wall of the institution. (A small stream used to run through the middle of this strip of land, and the previous owner of our house built the wall in order to protect her children from it.) I have been advised that those who have been living there for more than 30 years have established a lean on the institution wall and it has now become the de facto boundary.

Almost at right angles to our road is another road and the first house on that road, if they were to extend their garden to the institution wall, would cross the logical extension of our garden to that same wall.

That is exactly what they are proposing. In fact, they started it a few weeks ago and I think they may have been hoping that it was done before we moved in. Fortunately, we closed very quickly.

I have done a drawing which illustrates the problem. You can view it here>

[broken link removed]

They want to extend the right hand wall of their garden in a straigt line. This would mean that it hits the institution wall approximately half way across the line of the straight line extension of our garden - the line that all the gardens to our right have done over the years.

I realize that since both of us are on the corner, there is an issue about what constitutes a logical extension of either garden.

Also, I am aware that, since this is unregistered land, neither of us can legally do anything on it.

I would like to compromise. They feel that if I extend straight ahead of my left hand wall, I will be cutting across them. I feel the same about their right hand wall. But, if they build the fence in, or near to, a line with my wall, I won't see it from my garden and it will be relatively straight across their garden.

I have offered to pay half the cost of the fence, if we can agree on the line it takes.

Anyone care to play Solomon on this one?

Many thanks.

D.

ps........If you click on the link above, it will prompt you to download. If you do so, the drawing will open in Word, not in your browser. Thanks.


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## z107 (10 Aug 2005)

What's the problem with just building the wall at an equal angle to both existing garden walls? - so that you both get the same amount of 'no man's land'?

Continue your right hand wall to the institution and your neighbours left hand wall to the institution. Mark a point half way between the two walls and this is where the dividing wall should meet. YOu might need to adjust the angle so you both end up with the same portion of no-man's land.


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## Dinarius (10 Aug 2005)

I am not concerned about the amount of land involved.

In fact, they end up with more land even if I were to extend my left hand wall straight ahead, as per the precedent set by all the other gardens to my right.

They are welcome to however much land there is! ;-)

My problem is that I don't want a fence (the proposed extension of their right hand wall) sweeping diagonally across our line of sight. It will carve our piece of no-man's-land into a horrible triangle and, more importantly, we will lose half of the institution wall that we currently have and it is very beautiful.

D.


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## Vanilla (11 Aug 2005)

Could you agree a common area between your two houses, not build any wall, so that you both enjoy uninterrupted views of the wall?

And btw 


> Also, I am aware that, since this is unregistered land, neither of us can legally do anything on it.


 
Thats not strictly true, if you or your predecessor in title were in possession of it for over 12 years ( preferably longer) you could apply for first registration based on possession.Or so could your neighbour, if they qualified on those grounds.


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## Dinarius (11 Aug 2005)

Vanilla,

Thanks for that.

I would certainly prefer no fence. I would be happy to establish what is 50% of the commonage to which we have shared frontage and run a boundary from the (logical point, in my view) point where our two walls meet to the appropriate spot on the institution wall. If they then wish to build a fence on that line, I would have no problem, because I know I can't see it.

On your second point, we're only just moving in. They've been there for 2 years, so I guess neither of us is eligible.

Thanks again.

D


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## Dinarius (11 Aug 2005)

Someone just suggested to me that the fact that the bit of commonage at the end of our garden was used for the disposal of green garden waste since the 60's constitutes inherited adverse possession and that we have therefore an inherited established right over the area.

Anyone care to comment?

This is proving to be a nightmare.

Thanks.

D.


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## Vanilla (11 Aug 2005)

This is what I mentioned, Dinarius- if you *or your predecessors in title* have used it for up to 12 years you can claim title. Because it is unregistered this would be by first registraton based on possession. But equally could your neighbours claim?


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## Dinarius (11 Aug 2005)

Vanilla,

Yes, they could also claim, I suppose.

But, all I want is 50% of what's there. No more, no less.

Right now, they're taking a lot more in if they build that fence.

Thanks.

D.


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## Dinarius (11 Aug 2005)

Another thing.........

If negotiation doesn't get anywhere and they say they are going to proceed with the erection of the fence, could we say that we will dismantle any portion of it that we believe to be on our 50%, thereby forcing them to prove otherwise?

Alternatively, someone suggested that we should go onto the land and erect something ourselves.

Well?

Thanks.

D.


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## Vanilla (11 Aug 2005)

Dismantling their fence could be said to be criminal damage. Equally, if they go on to your land and erect a fence, it could be said to be trespass. Its a grey area. To stop them legally, you would have to take out an injunction- its not worth it! Its expensive! If at all possible, do something by agreement. Remember you have to live next door to these guys.


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## Dinarius (11 Aug 2005)

Vanilla,

Thanks. 

Actually, they're around the corner. I have no issue about annoying them! ;-)

Thanks.

D.


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## Dinarius (11 Aug 2005)

One other question............

Is ownership through adverse possession automatic after 12 years, or does it have to asserted in some way?

If it's automatic then logically, it would seem to me, they own 50% and we own 50% of what's there.

Just wondering.........

Thanks.

D


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## Vanilla (12 Aug 2005)

Its not automatic. In practical terms have you or the previous owner of your house actually occupied this patch of ground or has it been occupied by the occupiers of this other house? If neither of you have had the requisite amount of possession, then neither of you can claim. Its also quite a technical construction as to the type of occupation, so legal advice would be needed on whether the application had any likelyhood of success. If you make such an application, usually the land registry would send a notice to your neighbours and the persons on title if any. If they object and have a valid ground of objection, your application will not succeed. And vice versa.


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## Dusty (30 Aug 2005)

Just to add another thought.

Presumably this space (no-mans land) was left by the developer of your houses to allow the Institution access to maintain its boundry wall. If you close in this space by extending your gardens, Who will be responsible for the up-keep of the wall? Will the institution still have a right of way through your extended garden?

Another question for a solicitor I suspect.


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## Vanilla (30 Aug 2005)

The owner of a wall is always responsible for its upkeep unless there is an agreement to the contrary where someone else agrees to do so.


A right of way is established either by long user or by a grant of right of way by the owner. So either there must be a right of way on the title given to the institution or they have must been going through the property long enough to have established one.


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## Marie (30 Aug 2005)

I understood it was the case that land and property which _do not have established ownership_ can be annexed under this system (possession being nine-tenths of the law).  However that strip of land in question (a) belongs to the institution whose wall runs along the back of your property and (b) it used to be a stream/ditch which presumably is now dry or diverted into a storm-drain elsewhere.  When walls are built there is a requirement to 'sacrifice' land on the neighbouring side (so the builder who built my garden wall informed me).  Though your neighbours appear to have informally annexed the institution's land I doubt they can actually claim ownership - regardless of what has been 'put' on it or who has used it.  The same situation pertains at the back of my property.  the Institution built a 2.5 metre high wall and 'sacrificed' 12' wide strip which is used by pedestrians and cyclists for the past 150 years.  The institution (the army) maintained it up to a couple of years ago when the garrison was sold to a developer for conversion to housing.  However we (residents whose garden walls form the other perimeter of the strip don't now 'own' it!  Or do we?  Can some legal-eagle out there quote an actual by-law or precedent on this issue?


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## Dinarius (31 Aug 2005)

One expert on boundary issues told me that, if we carried out the research, we would almost certainly find that the our land and the institution's land are bounded by the mid-point of the stream. Apparently, the was the way things were done way back. Makes sense when you think about it.

Secondly, our advice is that the issue of adverse possession does apply and that all of the house owners whose gardens are 'bookended' by the institution's wall have a claim, if they have been making use of the land for a period of 12 years or more.

Equally, your builder's point about land being sacrificed when a wall is built makes perfect sense. However, in our case, no one other than a house owner, or someone from the institution climbing over their wall, can access the strip of land. So, any issue of public right of way doesn't arise.

D.


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## Vanilla (31 Aug 2005)

> When walls are built there is a requirement to 'sacrifice' land on the neighbouring side (so the builder who built my garden wall informed me).


 
Not true.



> Though your neighbours appear to have informally annexed the institution's land I doubt they can actually claim ownership - regardless of what has been 'put' on it or who has used it.


 
Not necessarily true- see above.



> Or do we? Can some legal-eagle out there quote an actual by-law or precedent on this issue?


 
See my previous replies...


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## 90210 (31 Aug 2005)

I have been thought three adverse possessions claim within my family, it is a complicated, costly, time consuming and difficult process. As Vanilla states debate and agreement about the matter with the other party is best, letting a judge decide could ruin you. From experience if no side can prove title most cases are settled 50/50 and each side incurs their own costs - think about it - High court costs.

You need to be 100% before you start engaging in a protracted land law case, it just not a simple straight forward area of law.



For those of you that are not in the know check this out for an idea on what is involved in order to prove adverse possession.



http://www.answers.com/topic/adverse-possession



Remember adverse possession is a term used to state that you held onto the property for a time frame adversely to another interests. But this has to be proved, you will then need to register the land and talked title to make the property saleable or transferable.



To be honest the word and advice of a solicitor will not be enough, usually a Senior Chancery Barrister will need to be briefed with the details before you make a judgement on whether to proceed. Obviously if there are a number of houses or parties affected then the risk and cost is spread.


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## Vanilla (31 Aug 2005)

> usually a Senior Chancery Barrister will need to be briefed with the details before you make a judgement on whether to proceed




Er...no this isn't normal- perhaps in a case where there will definitely be opposition to the claim, and where the property is of a large value it might be obtained, but not under normal circumstances. Any opinion obtained would also be relative to the value of the property. In this case, I doubt if obtaining any opinion is merited.


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## 90210 (31 Aug 2005)

As I stated Vanilla debate and agreement is the best method, but if no agreement is reached then one side will presumably want to take action or just let the matter go on the long finger. Given the value of property today it is likely that someone will take action. You state that it is not normal but believe me from my experience it is and it has been always better to rely on at least a Junior's opinion before making a judgement to proceed and issue or at least to assess any defence, holes, queries, concerns etc. It is laughable as I have seen it in business were a solicitor will go head strong in to a problem only to flounder at the end when he has brief a Barrister, then the mistakes or weakness start to surface and your told, “we’ll lets see if we can do a 50/50”. Here most land disputes are over the Circuit Court limit of 32K; given today's land values you’re into High Court territory. Unless I am grossly mistaken High Court is for the Seniors and you would be very foolish to take the opinion of a solicitor if you are planning to take the matter all the way into the High Court as that is a different arena. In this case I would not recommend a Senior as it seems to be a very small parcel of land but generally speaking anyone who is thinking of taking this route should be made aware of the full risks and the costs involved, something that solicitors do not often convey very well as they tend to be over positive. I personally am wary of solicitors who advertise a jack-of-all-trades within their practice, a specialist solicitor in land law is hard to find. Three Senior’s nominated our guy and it proved invaluable as he was well versed in the business end of the industry – the court.



In relation to the opinion, yes it would be relative to the subject matter and the value but if you pre agrees costs with Counsel before hand you can keep control of the costs.



Thanks you all- Remember each case on it own merit


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## Dinarius (31 Aug 2005)

Vanilla said:
			
		

> Any opinion obtained would also be relative to the value of the property. In this case, I doubt if obtaining any opinion is merited.



We're talking about an area of ground roughly 1/4 to 1/2 the size of a tennis court. Not much, but enough to considerably enhance the average three bed semi's existing plot.

D.

ps. I'm referring to the ground at the end of our house and the neighbour's house. The entire plot of no-man's-land is considerably bigger.


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## Vanilla (1 Sep 2005)

> generally speaking anyone who is thinking of taking this route should be made aware of the full risks and the costs involved, something that solicitors do not often convey very well as they tend to be over positive


 As I said, in this case no opinion is merited- this is a common and garden s.49 or first registration application which many solicitors, myself included, do every week. I certainly wouldnt get counsels opinion. Every solicitor must advise their client of the cost involved at the outset, and the risks? Well, either you are successful or you are not. If someone objects to the application and has good grounds for it, you then have a choice of pursuing it with the risk of a court action- but you could very well just pull out at that stage, because it wouldnt be worthwhile.



> Three Senior’s nominated our guy and it proved invaluable as he was well versed in the business end of the industry – the court.


 
I really don't understand the above- are you saying that three senior counsel nominated your solicitor? Goodness, thats very odd. I would have thought it would be the other way around...


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## 90210 (2 Sep 2005)

"I really don't understand the above- are you saying that three senior counsel nominated your solicitor? Goodness, thats very odd. I would have thought it would be the other way around..."



I don’t mean to blow my own trumpet but you are either in the know or you aint. In my business dealings I have dealt with numerous solicitors both for myself but mostly other people's and to be honest there are a large proportion (like any other industry) of them who consistently under perform, delay paperwork, get details wrong and lack specialisation and experience. I not being specific to this case, but when you are arguing over a couple of million or a few hundred thousand you don’t just get any Tom and Dick to do the job. You need a specialist who has a track record in the area and a history of success also, I know I am deviating from the original post but the point I am trying to make is that solicitors like any other industry has good, bad and bloody marvellous people in the fraternity, but most people just seem to think that once you go to a solicitor its job done. The idea is to be better than the other side Vanilla.



Also "If someone objects to the application and has good grounds for it, you then have a choice of pursuing it with the risk of a court action- but you could very well just pull out at that stage, because it wouldn’t be worthwhile."



I agree and the person to make that decision is the client and the guy who would be steering the ship in Court, at the business end - The Barrister.


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## Vanilla (2 Sep 2005)

Indeed, you are obviously 'in the know', if you have three senior counsel picking your solicitor for you...


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