# Adverse possession - building on boundary wall



## damson (21 Apr 2008)

The Pat Kenny case has got me thinking...

My house is semi-detached. Long before I bought it, at a time when there was no planning permission in Ireland, my (now elderly) neighbour built a rear extension. This was done by building up the garden wall which separates his house from mine. The whole thing is hugely amateurish and looks fit to fall down – it's no better than a lean-to really. It runs the full length of the dividing garden wall.

The point is, my official boundary runs down the middle of the dividing wall, which is about 18 inches wide, so the side wall of his house is now about 9 inches into my property, and when you take the overhang of the roof into account, he's taking about a foot and a half.

Now, he's just died and already the sons and daughters are talking about selling the house. My concern is that when they do, the very first thing the new owner is going to do is tear down the rear extension and rebuild, and I don't want them taking over land that should be mine. Apart from anything else, I want to build my own rear extension.

Presuming no amendments are made to boundaries on the deeds of either house, am I protected from new owners being able to claim adverse possession – i.e. would they have to own the protruding extension themselves for a fixed period of time without me objecting?

Any thoughts?


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## HighFlier (21 Apr 2008)

If it was a tree you would be entitled to cut off the protruding parts and return the debris to him. Maybe the same applies to his roof!


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## murphaph (21 Apr 2008)

If you also intend building an extension then rather than making enemies of your new neighbours, approach them and discuss doing both extensions as one project and save throgh economy of scale. You are fully entitled to benefit equally from the party wall so could cut back the overhanging roof and tie it in to your own extension.

Best approach it with an open mind first of all-you'll be unlucky if your new neighbours are so unreasonable as to expect to be able to claim what is obviously yours and in any case-they'd never be able to claim adverse posession of the airspace a foot out from your party wall as you will have been making exclusive use of the land up to the wall and that automatically rules out any possibility of the other side claiming adverse posession. In any case-the CURRENT occupants would have to make that claim-the new owners wouldn't be able to claim it because the previous owners may have had a right to claim it. It doesn't work like that so I wouldn't worry-see this an an opportunity rather than a threat.

Adverse possession is difficult to prove and this is clearly not the case here. The Pat Kenny thing is totally different when you see the lay of the land in that case.


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## damson (1 May 2008)

Thanks for the input.

Yes, I hope the new neighbours will be reasonable and we can come to some agreement. I'm just concerned that if there's a danger they could claim adverse possession and that if there's some action I can take in advance to protect against the possibility that they're chancers, I should do it now just in case.


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## deew (1 May 2008)

Was this exact post ,posted before? Or did I see it on another site?
Deew


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## damson (2 May 2008)

It was posted here only, but the date of the original post was 21st April - almost 2 weeks ago (see the first post). I've been away so it's only now that I've been able to thank the contributors and so the thread has been resurrected.


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## Kingdom (30 Nov 2008)

There are a few things which are not clear from your original posting and I will make a few points to highlight those things.
1. Are you sure that the boundary runs down the middle of the wall which forms the rear wall of your neighbours lean-to shed.
2. I am in a similar position of your neighbour (except that my house is detached) and I built walls around my rear garden with no contribution from anyone.
3. I built the walls including the Foundation on my side of the original boundary.
4. The walls are not boundary walls.
5. I built sheds using these walls as the outer leaf of the rear wall of each shed.
6. A neighbour who subsequently purchased a site at the end of my garden started to attach timbers to his side of my wall and I advised him to stop as I knew if I didn't take a stand immediately that allowing this would inevitably lead to him building off the wall at some future date.

Be very careful and as a previous post advised, it's best to have a chat with your new neighbour and see if you can agree on a new building for both of you. But don't make demands as you could be in the position of my neighbours with no rights whatsoever!


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## damson (2 Dec 2008)

Hi Kingdom,

Thanks for the input - it's a valid point. However, in this case I am certain the boundary lies in the middle of the wall. The houses are two mirror-image semi-ds and the boundary runs down through the middle of the chimney and exactly between two windows, so it's easy enough to follow the line down to the wall.

The way the housing market's going at the moment, however, it may be a long time before I have new neighbours!


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## j26 (3 Dec 2008)

Adverse possession requires exclusive possession of land.  The overhang is certainly not adverse (you can walk under it), and at the end of the day, building on the party wall does not cause you to lose any land, so I wouldn't worry about that aspect.


murphaph gives good advise btw.


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## csirl (3 Dec 2008)

I'd be inclined to use the fact that the house is being put up for sale as a great opportunity to get this sorted.

The neighbours extension is an illegal development in that it was built without the permission of the owners of the party wall and the land beneath the overhang. How long has it being erected?


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## damson (3 Dec 2008)

From talking to the elderly gent who lived there, it was built when his children were young - in the late 1950s/early 1960s. He may well have had permission from the person who lived in my house at the time (not the person who sold it to me; 2 or 3 owners back), as I know they were great friends. However, there's nothing in the deeds about that - no boundary change or anything.


			
				j26 said:
			
		

> at the end of the day, building on the party wall does not cause you to lose any land, so I wouldn't worry about that aspect.


 I suppose I was just thinking that if they've an extension that goes the full width of the boundary wall rather than just to the midpoint, I can't build any future extension on my side to the midpoint.


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## csirl (4 Dec 2008)

The length of time that it has been there indicates that they would succeed on an adverse possession claim.

I'm very very surprised that this did not come up when you were purchasing your house (or with the previous purchases). The surveyor should have noticed the discrepency between the boundaries on the deeds and the reality on the ground.


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## Vanilla (4 Dec 2008)

And although you cannot claim adverse possession due to an overhang ( as has been correctly pointed out) one can claim an easement at common law by virtue of the length of time it has been there. So they do have the right to keep the overhang too, in my opinion.


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## damson (4 Dec 2008)

So if I understand you correctly, the current owners (offspring of deceased longstanding owner) could claim adverse possession, but if it were sold (and no changes were made to the deeds) then the slate is wiped clean with the new owners? So I should just keep my mouth shut until new people are in place and then point out my claim to the midpoint of the wall, in preparation for when they demolish the bockety extension?


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## Vanilla (4 Dec 2008)

damson said:


> So if I understand you correctly, the current owners (offspring of deceased longstanding owner) could claim adverse possession, but if it were sold (and no changes were made to the deeds) then the slate is wiped clean with the new owners? So I should just keep my mouth shut until new people are in place and then point out my claim to the midpoint of the wall, in preparation for when they demolish the bockety extension?


 

The new owners would get the benefit of any rights built up by the current owners. However if they did demolish the extension and then proceed to build a new extension overhanging your property you could certainly protest and although you might not be correct in law, for ease and neighbourliness your new neighbours might well concede.


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## damson (4 Dec 2008)

Ah - ok. Thanks.


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