What happens after I've successfully defended against adverse possession

[iceexplorer]

Our neighbour applied for adverse possession which we recently defended successfully in the first tier property Tribunal. We have now repossessed our land and fenced it but her solicitor is now telling us that we were incorrect to do this. Does he have a point or is this just posturing?

[PallasAthena]

Could it be because the neighbour is seeking permission to appeal to the Upper Tribunal? Although even if he is I'm not sure why you can't fence it in the meantime. I'll be interested to see what the lawyers here think.

Or maybe he is just posturing with a "we're going to win at appeal so don't wste your money fencing it" type of comment.

[Pezza54]

There is an interesting article titled "Adverse possession and rights of way - the search for an unequivocal act" at www.clarkewillmott.com
The article covers a case where a claimant failed in court to achieve adverse possession of the defendant's alleyway which the previous property owner had used for years and constructed a gate in the alleyway. The judge decided that the installation of the gate was not an unequivocal act.
If the solicitor did not say why you shouldn't have built a fence, you should reply and ask the legal reason why not

[iceexplorer]

There is an interesting article titled "Adverse possession and rights of way - the search for an unequivocal act" at www.clarkewillmott.com
The article covers a case where a claimant failed in court to achieve adverse possession of the defendant's alleyway which the previous property owner had used for years and constructed a gate in the alleyway. The judge decided that the installation of the gate was not an unequivocal act.
If the solicitor did not say why you shouldn't have built a fence, you should reply and ask the legal reason why not

They've said in their letter that it amounts to a trespass, although I didn't think that I could trespass on my own property? They think we should have put the new fence up along the line of the old fence, i.e. the neighbour should still have the land despite losing an adverse possession application for it.

Thankyou for taking the time to reply, I appreciate it.

[iceexplorer]

Could it be because the neighbour is seeking permission to appeal to the Upper Tribunal? Although even if he is I'm not sure why you can't fence it in the meantime. I'll be interested to see what the lawyers here think.

Or maybe he is just posturing with a "we're going to win at appeal so don't wste your money fencing it" type of comment.

They haven't begun appeal proceedings - would they need new evidence to do that anyway?

I'm obviously not going to take the fence down but it has been an interesting process to be part of - having to defend our right to our own property has been tedious in the extreme!

Thanks for taking the time to reply, I appreciate it.

[PallasAthena]

atticus or R0b may have a view on this.

Regarding appeals, no you don't have to have new evidence. Appeals in the court system are generally on the grounds that the original decison was wrong or unjust because of a serious procedural error or an error in applying or interpreting the law.

[echat11]

Have you applied to the Land Registry to become the legal owner of the land?.

[atticus]

When was the FTT decision (exact date) ? Do you know if an appeal has been filed?

Do you have the written judgement?

Is your title to the land registered at Land Registry?

The above information may help craft a robust reply to your neighbour's solicitors, but in the meantime I see no reason for you not to sit tight and not remove the fence.

What happened over a number of years to make your neighbours think they could claim adverse possession?

[iceexplorer]

Have you applied to the Land Registry to become the legal owner of the land?.

We are already the registered owners of the land

[iceexplorer]

When was the FTT decision (exact date) ? Do you know if an appeal has been filed?

Do you have the written judgement?

Is your title to the land registered at Land Registry?

The above information may help craft a robust reply to your neighbour's solicitors, but in the meantime I see no reason for you not to sit tight and not remove the fence.

What happened over a number of years to make your neighbours think they could claim adverse possession?

The decision was on 20th December 2023, we have not had notice that an appeal has been filed.
We are already the registered owners of the land as it is part of our title and the application for adverse possession has been canceled.

The boundary was originally created in the way that it was with the consent of the previous owners of our property - it was having and proving this consent that disproved adverse possession. The neighbour applied under the transitional processes under the old regime.

Do you think that I need to reply to the solicitor? There is no specific request for information, more of a setting out of their point of view, which differs from ours.

[Pezza54]

Did your neighbour use the land in dispute as a right of way, possibly for over 20 years? Does the new fence block their right of way?
You stated you were able to prove consent given by the previous owner. Consent to do what with the land? Was this consent a written document?
Their solicitor mentioned the original fence line. Who erected the fence, why was it built and who removed it?

[atticus]

A short and firm but polite reply should suffice.

[iceexplorer]

Did your neighbour use the land in dispute as a right of way, possibly for over 20 years? Does the new fence block their right of way?
You stated you were able to prove consent given by the previous owner. Consent to do what with the land? Was this consent a written document?
Their solicitor mentioned the original fence line. Who erected the fence, why was it built and who removed it?

The land was a corner of a garden and gave the neighbour no access, although it did prevent our access which is why we originally asked for it to be returned to us - this was when the neighbour applied for adverse possession. We have now restored our access by installing a gate into the new fence that we erected after the adverse possession was not found. The consent was for the neighbour to use the corner of our garden, nothing more. We have retuned both gardens to the way they are shown on both of our titles.

[iceexplorer]

A short and firm but polite reply should suffice.

Thankyou - do you also happen to know if there are specific forms or a way of applying for our costs? The order calls on the neighbour to pay our costs but I don't know how to go about claiming these.

Thankyou for your response, I appreciate it

[atticus]

Costs - you will need to go through the torturous process of detailed assessment, about which I am happily ignorant. Perhaps find and speak to a "costs lawyer" in your area?

Am I right to guess you were not legally represented?