Land title disputes stems from a property’s title. When a property is registered with HM Land Registry it is given a unique title number. Each title number will have a subsequent “title register” and “title plan. An experienced Property Disputes Solicitor can explain every element of a title to you in simple terms.
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What title information does HM Land Registry hold?
The title register will record matters such as:
· Transfers of ownership.
· Any mortgages on the land.
· Covenants (positive and negative), rights of way, and easements.
The title plan provides information about the general boundaries of the property.
What are the most common land title disputes?
Some disagreement on property ownership seemed to come up again and again. The most common land title-related disputes are:
· Adverse possession
· Boundary disputes
· Compulsory purchase
· Easements and Rights of Way
· Right to Light
Read on to find out more about each of these issues in more detail.
What is adverse possession?
Colloquially known as squatters’ rights, adverse possession refers to the right to ownership of land that you have used or resided on for 10-12 years. The law has developed over the years under the expectation that land, being a scarce commodity, should be used rather than left idle.
To successfully apply to be registered as the owner of a piece of land you must be able to prove that:
- you have been in possession (not simply using) the land for at least a decade;
- you intend to possess the land and;
- your possession is adverse, ie devoid of the title owner’s consent, without force, and minus any secrecy.
Possession means that you are in control of the land, i.e. you have put a lock on the gate or built a fence to keep others out.
How to apply for adverse possession
An application for adverse possession must be made to the Land Registry. You need to include a statutory declaration that is made no more than one month before the application and provides evidence that the requirements for adverse possession are met.
If the land is registered, the notice of adverse possession will be served on the owner, who can either accept it or serve a counter-notice. It is often easier to be granted adverse possession of land that is unregistered because the owner of the property may be untraceable.
If you want to apply to the Land Registry to become the registered owner of a property via adverse possession after being evicted from the property, you have six months from the eviction date to make an application. Whilst you are waiting for the application to be considered, you may wish to apply to the Court for an injunction to allow you to retain possession of the land whilst your case is being decided.
Click here to read more about Adverse Possession
Boundary disputes involve some of the most combative situations a Property Disputes Solicitor has to deal with. One of the Solicitor’s roles is to manage client emotions and prevent legal costs from dramatically exceeding the seriousness of the dispute.
Boundary disputes often involve circumstantial evidence and once a party starts muttering something along the lines of “it’s the principle of the matter” reason and commercial reality have usually left the building. And sadly that can prove very expensive indeed.
A boundary is a line that divides two separate pieces of land. It can be natural, for example, a hedgerow or artificial, i.e a fence. Details of a property’s boundary are normally included in the title plan.
The 2011 case of Acco Properties Ltd v Severn sets out a useful summary of the principles the Court must use when deciding on a boundary dispute:
a) Registered titles normally show the general boundaries of a property rather than the exact boundary line.
b) Ordinance Surveys (OS) provide only a general guide as to boundaries and should not be scaled up to define an exact boundary.
c) The starting point is the conveyancing plan.
d) If the conveyancing plan is not clear then extrinsic evidence (evidence outside the wording of the plan) may be considered.
e) If it shows what the parties intended, the evidence concerning the conduct of the parties may be admissible.
f) Evidence of features after the conveyance plan date may be relevant.
g) Rather than being ‘fuzzy around the edges’ the boundary must be clear.
h) Evidence of adverse possession may be considered if it shows that the boundary may be different to the one on the conveyance plan.
i) Informal boundary agreements can be made by oral agreement and can be inferred or implied.
j) The Court must consider what a reasonable layperson would think that they were buying when purchasing the property.
When deciding Acco the Judge commented
“a party can litigate over a tiny strip of land, although I would certainly agree that it is usually economic madness to do so, but a person remains entitled in law to protect and preserve that which is his or hers”.
In light of this and other judicial warnings, almost all Property Disputes Solicitors will encourage clients to try and resolve a boundary dispute through Alternative Dispute Resolution methods such as mediation.
Click here to read more about Boundary Disputes, Hedge Disputes, Fence Boundary Disputes and Party Wall Boundary Disputes and find out how our team can help you
If someone trespasses on your land it means they have no legal right to be on your property. You have not invited them, either expressly or by implication. A trespasser can also be someone who once had permission to be on your land but following your withdrawal of that permission, no longer has any right to be there.
Trespassing on residential property is a criminal offence and your first action should be to call the police. However, the police are not legally obliged to move trespassers off your land.
Removing trespassers using civil proceedings
To remove a trespasser you may need to file proceedings against ‘Persons Unknown’ (if you do not know the names of the trespassers) in the County Court.
You can apply for an Interim Possession Order to have the trespassers sent away before the final hearing. If the trespassers do not vacate the property within 24 hours after receiving an Interim Possession Order against them then they are committing an offence under section 76 of the Criminal Justice and Public Order Act 1994. The police can be contacted regarding this offence and the trespassers can be arrested.
Your application for removal must be made within 28 days of you becoming aware of the trespassers’ presence.
You must contact a Property Disputes Solicitor the moment trespassers enter your property as there are strict procedures around issuing Court notices. Furthermore, if, in order to keep the peace, you tell the trespassers they can stay for a short time this may affect your ability to regain possession through the Courts. A Solicitor will advise you on what to do and begin the repossession process as soon as possible.
Easements and Rights of Way
An easement is a right benefiting a piece of land (known as the dominant land) that is enjoyed over another piece of land owned by someone else (the servient land).
In most cases, the person who owns the dominant land can do something on the servient land, for example, lay pipes or cross the property in order to access their own land.
One of the most common types of easements in England is across driveways, for example the owner of a property has the right to cross their neighbour’s driveway to access their house and/or garage.
Easements and rights of way are common causes of title disputes. Disagreements can arise from:
· Maintenance responsibilities.
· One party blocking the other’s right of way.
· One party not allowing access to third party vehicles to undertake repairs and/or home improvements.
Often disputes arise when a new owner moves into the property and denies that an easement or right of way exists. In such situations, it is imperative to seek legal advice and have the title checked to establish what easements exist.
Click here to read more about Rights of Way Disputes
Right to Light
Right to light disputes can be extremely complex to resolve. The Prescription Act 1832 provides for a legal right to light. In the case of a residential home or a commercial property, more than half of a room should receive natural light. Furthermore, if someone has enjoyed uninterrupted light through an opening for more than two decades, they have a right to continue to enjoy that light as long as certain criteria are met, namely that the light has been enjoyed:
· Without specific consent,
· Without threat, and
· Without interruption.
To bring a successful claim, you must show that the loss of light constitutes a nuisance. Evidence needs to prove that your home has been made significantly less comfortable and convenient because of the light reduction.
Covenants are another major source of property disputes. Often people only become aware that a particular covenant over their property exists when they are accused of breaching it.
A covenant is a promise to do or refrain from doing something. The former is a positive covenant, the latter is a negative covenant. Negative covenants run with the land, meaning they are registered on the title and are legally enforceable on every owner as long as certain conditions are met, namely:
· The covenant is correctly registered.
· It was taken out to protect the land that was retained by the original covenantee.
· The covenant genuinely benefits the land owned by the person seeking to enforce it.
· It is clear and properly drafted.
If any of the above does not apply you can challenge the enforceability of the covenant.
Can covenants be removed or varied?
In short, sometimes. Covenants can become obsolete over time. If this occurs you can apply to the Land Registry to have it removed or varied. To achieve this a Conveyancing Solicitor will write to the beneficiary of the covenant. It is likely the beneficiary will ask for compensation in exchange for removing or varying the covenant. Your Solicitor will also need to prepare and register a Deed of Release or Deed of Variation and have this registered on the title.
If you are unable to find the beneficiary of the covenant or they refuse to remove or vary the covenant you can apply to the Upper Tribunal (Lands Chamber) for a judgment.
Nuisance (Statutory and Common Law)
1. Statutory nuisance
The statutory nuisance regime is set out in the Environmental Protection Act 1990, which lists the following categories of matters which can amount to a statutory nuisance:
- The physical state of any premises (“premises” includes land and most vessels.)
- Smoke from premises.
- Fumes or gases (from private dwellings).
- Dust, steam, smell, or other effluvia from industrial, trade or business premises.
- Any accumulation or deposit.
- Keeping of animals.
- Insects from industrial, trade and business premises.
- Artificial light from premises.
- Noise from premises (including vibration).
- Noise from a vehicle, machinery, or equipment in the street.
- Any other matter declared by any enactment to be a statutory nuisance.
Except for the last category listed above, for a nuisance to be deemed a statutory nuisance it must be or be likely to be a ‘common law nuisance’ (see below) or damaging to health.
Both a local authority and the person/s affected by a statutory nuisance can bring a claim.
If a local authority is satisfied that on the balance of probabilities a statutory nuisance exists, it is required to serve an Abatement Notice. The exception to this is if the nuisance involves excessive noise – the local authority can take alternative steps to resolve the issue.
2. Common law nuisance
Common law nuisance can be broadly defined as where one person’s property or actions performed on that property damages neighbouring land. Nuisance is divided into two categories, public nuisance, and private nuisance.
3. Private nuisance
The Courts have identified three kinds of nuisance:
- Encroachment on a neighbour’s land.
- Direct physical injury to a neighbour’s land.
- Interference with a neighbour’s quiet enjoyment of their land.
These categories are not rigid and as new social conditions emerge each case will be judged on its facts.
A Claimant does not have to suffer damage to bring a claim in private nuisance and the concept of damage in such cases is broad.
4. Public nuisance
Public nuisance happens when a property owner commits an act that endangers the life, health, property, morals, or comfort of the public or obstructs the public in the exercise or enjoyment of rights common to all. Examples of public nuisance include someone mixing chemicals on their land that results in dangerous and/or noxious fumes or blocking a public road.
Unlike statutory nuisance, a Claimant must have an interest in the affected property to be able to bring court proceedings.
There are many alternatives to claiming common law nuisance and your Property Litigation Solicitor will discuss these with you.
Compulsory purchase is where certain public bodies can legally acquire land for a particular purpose should the landowner refuse to agree to sell. Often compulsory purchase is required for site assembly for major projects such as a prison, hospital, utility-related building, or highway.
If your property is subject to compulsory purchase you will be served with due notice and the notice will also be published in one or more local newspapers. Site notices will also be displayed.
Property owners can object to the Secretary of State about the compulsory purchase. You must have the advice and representation of an experienced Property Law Solicitor to articulate your objections. You have the right to present your objections before a public local inquiry.
Upon receiving the compulsory purchase notice you will be entitled to submit a compensation claim. Again, you will need to instruct an experienced solicitor who will in turn instruct a valuer and/or surveyor and draw up the details of your claim from the information they provide.
If the level of compensation, is disputed the case can be sent to the Upper Tribunal for independent adjudication. In most cases, this will involve preparing for and attending a hearing. Following the hearing, a decision on the compensation amount and who should pay the legal costs will be made.
Resolving land title disputes with mediation
Most land title disputes never reach the courtroom. Thankfully, negotiation and mediation are usually able to resolve even the toughest property disagreements.
The advantages of using mediation as a dispute resolution method include:
· It is quicker and cheaper than formal litigation.
· The process is confidential, and the decision will not be published.
· Mediation is voluntary meaning both parties are usually highly motivated to resolve the dispute.
· A trained Mediator will facilitate the mediation and help parties achieve a win-win solution.
Mediation costs between £500 to £5,000 per day depending on the expertise and experience of the Mediator you select. Both parties to the mediation share the Mediator’s costs. It is best to select a Mediator who charges between £1,500 – £3,000 per day as Mediators who charge less may lack the experience and skills required to facilitate a settlement.
Land title disputes – the need for specialist legal advice
If you find yourself involved in a land-related title dispute you must contact an experienced Property Disputes Solicitor for advice and representation. They will help you resolve your dispute as quickly and cost-effectively as possible and ensure your best interests are protected throughout the case.