Boundaries and fences

[DocMurphy]

We moved into our current property approximately a year ago. On the Land Registry Title plan, our land extends beyond our back fence to the end of the road which extends behind our house. The road is a dead end and there are houses behind ours. The house which occupies the corner behind ours has recently put up a 3ft chain and post fence around the grassed area, which includes the land we own behind our fence as well as the land he owns behind our next door neighbours. He claims he owns the land behind our house also, but there is no record of a transfer of land to him, and the current Land Registry plans show it is ours. He says he has been maintaining the land for 6/7 years as did his predecessor. However, he has only just put up the fence to keep kids from playing football on the grass. We want to fence this is as part of our garden, as some of our neighbours further along have already done.

I have two questions:

Does adverse possession apply to him as he has maintained the ground, but not fenced it in until last week?

Do we need planning permission to override the covenent in the title deeds?

[buildersmate]

The law on adverse possession changed under the Land Registration Act 2002 so that a squatter could claim to be registered as proprietor after 10 years of adverse possession. Your neighbour does not have this period, so I do not believe that he can make such a claim. As far as I know, there is no legal device for him to claim for ten years based on three years being accrued by the previous owner (I am unsure on this point - others such as Golden Shred may correct me), because the claim is by the individual and not transferrable with the title of the property when it sold.

To claim the land at all he would have to apply to the LR - and he has evidently not done this. You should inform him that he is incorrect and advise him that you intend to fence your land.

Your last line refers to a convenent in the title deeds. What is this convenent? (Planning Permission is nothing to do with legal title, being instead to do with the Town and Country Planning Act to develop one's land - it is nothing to do with land ownership.) Hope that helps.

[Golden Shred]

It is largely as buildersmate says, that is that after ten years a formal claim for adverse possession can be made to the Land Registry. All neighbours and affected parties are notified by the LR and if there is an objection no entry will be made and this lasts for two years. If at the end of two years the arguments against the claim are not sorted out then no entry at all will be made. You can read all about it here by scrolling down to and opening LRPG 4. You will see that as a fence has only just been erected he has no claim whatsoever. Merely cutting the grass and tidying up gives rise to no claim at all. Planning Permission has nothing to do with this, it is for the Land Registry and the Courts. As buildersmate requests, could you please give details of the covenant to enable comment.

[DocMurphy]

The actual wording of what I presume is a covenent is under the section heading ' The third schedule before referred to', and there are various paragraphs. This is the fourth paragraph:

4. Not to fence or otherwise enclose that part of the property herby transferred between the dwellinghouse and any road or roads as the case may be onto which it abuts or has a return frontage but to maintain such parts in accordance with the requirements of the appropriate Planning Authority.

Does this enlighten anyone?

[buildersmate]

Yes it does. This is standard stuff often applied to modern housing estates whereby one is not allowed to erect a fence between the property and the road (at the front). This maintains the open aspect to the whole estate and it is often demanded by the Planning Authority when granting PP to the developer, who builds the appropriate clause into the land transfer when he sells on each developed house. It has nothing whatsoever to do with whether one can erect a fence between the houses. Read the clause again for yourself - it is talking in legal mumbo-jumbo about between the house and the road(s). You' re still in the the clear!

[Golden Shred]

Well, the sense I make of it is that where on the Plan land is shown as conveyed to you between any front or side (if you are an end house) elevation of your house and a highway this covenant prevents you from placing fencing on it. The intention is to create and retain an open plan estate. I imagine that the overall original planning permission for your estate contained a condition regarding maintainance of fronts, and if this is not specifically repeated in your Registration you will have to look at a copy of the estate planning permission in your Local Authority to read it. From the description you give I cannot for the life of me work out how your property and the adjoining ones relate and who's grabbing what, is it possible for you to do a rough sketch, scan it in and then host it on something like tinypic with a link to here? There is a positive action that can be taken in these land grabbing matters but I am reluctant to state it until I fully understand the matter.

[Golden Shred]

Sorry buildersmate, I must have been typing my answer and did not notice that yours had appeared. We are saying the same thing.

[DocMurphy]

The plans of both properties can be found at this link. My property is no 14, and my neighbours property is in the corner behind mine. My existing fence is marked in black, the boundary in red.

http://www.doctors.net.uk/DocStore/DSView/Albu m.aspx?folderid=39253

[DocMurphy]

Sorry, that link didn't work. Try this

http://www.doctors.net.uk/DocStore/DSView/Albu m.aspx?folderid=39253

[Golden Shred]

Regret links not working.

[DocMurphy]

If you copy and paste the link and take the <p> off the end, it works then...don't know why it won't work

http://www.doctors.net.uk/DocStore/DSview/Album.aspx?folderid=39253

[Golden Shred]

I understand it now. If the same covenant applies to No 19 as to you then they cannot in any way enclose the area to the front of their property in the same way that you cannot enclose in any way the area to the rear of your property beyond the shown fence. The estate Planning Permission will say how these areas must be maintained. The land is conveyed with these restrictions.This is quite a common situation but is more a curse then a blessing as it does cause confusion, trouble and misunderstanding. In dealing with this you first have to understand that there is no contract of any sort between you and No 19. If you read your conveyance carefully you will find that the covenant is between each owner and the Estate Developer only (imagine a spiders web with each strand leading to the spider in the centre). From this stems that only the Estate Developer can enforce the covenant because that is where the contract lies, nowhere else. However, the Enforcement Officer of your Local Authority has very effective powers to put a stop to breaches of the Planning Permission. So you must endeavour to get the Estate Developer to put a stop to the breach of the covenant and at the same time notify the Enforcement Officer of the breach of planning and ask him to act. If No 19 does put fencing on your land, then it is trespass and you have the right to take it down and place it on his land or store it safely for collection. If No 19 persists, involve the police by complaining of harrassment.

[DocMurphy]

Should I be formally writing to my neighbour to say that he has put a fence on what is legally my property and he should remove it? I am not sure whether this is going to upset the applecart more, so to speak.

The local planning office have said that if I apply for planning permission, then this will override the paragraph in the deeds. I want to do this, but should I go ahead and apply if my neighbour still says he has a claim on the land?

I feel like this is all such a mess!!

[Golden Shred]

(a) write to your neighbour by all means. Simply say that the fence which he has improperly erected on your property must be removed and the ground returned to its former condition within fourteen days, that is by (insert date 16 days from the date of your letter), failing which you will have the fence removed and placed on his property and the ground repaired at his expense without further notice.

(b) your neighbour has no valid or genuine claim to your property of any sort. Non at all. Should he try to advance one it will only be waffle and will not get anywhere.

(c) I am not clear in my own mind as to what you are seeking planning permission for - a fence, shed, garage, greenhouse? You will have to have it properly drawn up to apply and your Local Authority Fee will be about �200 so you will be down �500. Even if you were successful (and personally I think you stand no chance) remember that your contract (covenant) with the estate developer restricts the use of that bit of land to as stated in the covenant and planning permission of itself will not release you from the covenant. You will have to negotiate (purchase) release from the covenant from the estate developer who will in turn have to seek release from the estate overall planning permission from your Local Authority. Not in the least bit likely to happen and quite expensive to find that out as your estate developer will require you to indemnify his costs beforehand.

(d) to my mind your best bet is to persevere to return it to the open grassed area that it is intended to be, make access to get a mower out onto it and maintain it. If you do not do this it will muck up your conveyance and will be a severe obstacle when you want to sell.

[Golden Shred]

PS I meant to include under (a) that if you do write such a letter you must carry out the removal swiftly and without fail. No point in writing if you are faint-hearted about that. The only other way is to apply for an injunction for removal through the courts (�1500 - �2000 if unopposed, �10000 - �12000 if opposed)

[DocMurphy]

The planning permission is for a fence (as it is over 1m and next to a public highway). The planning office have said that as the original planning permission made a provision for an open plan estate, but that others have enclosed similar land, that if the local authority grant permission to fence in the area, this overrides the original permission. Does this make any sense?

[Golden Shred]

Yes. New planning consent will override the old one. Have others on the estate obtained planning consent to enclose open plan areas or have they just "captured" the land without consent? If you are the first to apply this could possibly swing the Enforcement Officer into action to have the lot cleared off. If others have already received consent then your application should be a simple formality which will be passed on the nod. If you receive consent you will still have to get rid of the covenant before you can sell, but this can be left until well after the fence is up and established. If you can obtain consent you should arrange for the fencers to remove your neighbours fencing and put yours up on the same day.

[Golden Shred]

Have just noticed that you are now asking elsewhere about planning permission. Have drawn my own conclusions and will not be returning to this thread.

[DocMurphy]

I am not sure what you mean by "drawing my own conclusions". I only wanted to obtain as much advice as possible before deciding on what course of action to take. I apologise if I have somehow upset people by doing this.