Adverse possession over unregistered land where neighbours have access rights

[ErlingHaalandsManBun]

I am not sure if I am posting this in the right place or whether I should have put it under legal but thought I would try here first.

We are selling our house, an end terraced cottage which has an unregistered road/single track that runs from the road in front, to the side of our house and along the length of the back of it, and along the whole row of houses, and out the other end and back to the road. All the houses in the row have access over that unregistered land which is clearly stated in all our title deeds for each house.

Our buyers want us to claim adverse possession over the section of land directly to the side and the back of our house because we have been using it as ours for the last 13 years. Although we have been, but so have our neighbours, as they have been using it to access the road, put their bins out, get gas bottles and logs delivered etc.

So can we even apply for adverse possession when our neighbours have access rights?

I am not sure we legally could even do this or even if its the right thing to do.

We have never had any issues sharing this access in all the time we have lived here but our buyers have a bit of an issue with it, hence wanting adverse possession.

Anyone dealt with anything like this before?

I believe for adverse possession you have to prove you have been using the land to the exclusion of others. As your neighbours have been using the land too, and everyone’s deeds state they have a right to access, you don’t have a chance of claiming adverse possession

I’d reply and tell your buyer ‘Very funny, but April 1st was 3 months ago. Take the house as it is or I’ll be putting it back on the market.’

What CFs! They basically want more land for the agreed price.

Go back and say you can investigate the possibility but, if successful, you’d need to have the property re-valued as it will come with a larger garden than advertised.

Honestly, this sounds like this come up in the enquiries from the buyers solicitor that has just been forwarded on to you to worry about without you being properly advised by your conveyancer. Just say no. This will be a a right faff to try and deal with if the LR even accepts the application as notices will have to be served on everyone that uses the road and it’s just a costly, long winded exercise that will make zero practical difference to using the access way. Your title deeds clearly grants rights over the land which should be sufficient. At most, I’d agree to write a statement of truth to support the buyer making an application in the future if they wish to make an application for adverse possession themselves.

Now this is exactly what I said. I didn't think it was going to be possible and to be honest, I don't think I would want to do this.

All the neighbours are lovely and we have all been respectfully all using the access as it has been for many, many years with no issues at all. I wouldn't feel right even trying to do this.

We were transparent and open about the access and how it works and hid nothing from them when they viewed and they made the offer. Now they are not happy with the access arrangements.

So yes, it is what it is, they will either need to agree to buy as things stand or this isn't the property for them.

Thank you for your reply.

I like your thinking!! 😂

Thank you for your reply. It seems our buyers solicitors has unnecessarily 'spooked' them about this access and it has become a massive issue for them from no-where. They didn't even question it when viewing and offering.

We have offered a statement of truth but it fell on deaf ears and their solicitor said it was not good enough. Our buyers are going on the advice of their solicitor who seems to have a massive bee in her bonnet over something that is honestly not an issue in the slightest. Its most frustrating for all of us.

If you and your neighbours are friends, could you group up to do an adverse possession claim together?
My neighbours and I formed a ltd company in order to jointly own a communal access sliver of land.

Shared access rights can be a pain though.

When everyone gets on and respects the rights and doesn't do stupid things everything is fine. But you only need to get one person who say for example decides to use the access land as their own personal dumping area or another that tries to restrict access to their bit and the whole thing can get very fraught and difficult/expensive to resolve. There is no guarantee that the reasonable and well behaved neighbours you have now will be the ones that are there in the future.

Just trying to give you the other perspective.

Surely your neighbours would still have the right to cross the land even if you did own it? My neighbours and I own the road in front of our houses (we all own the bit in front of our own house) but we all have the right to cross each others in our deeds.

Yeah, this is a complete joke of a request from your buyers. Don't give it any further thought

I agree with the exclusion point. But another requirement of adverse possession is that you have taken possession without consent of the freeholder owner. Here, you have accessed the land pursuant to consent in the form of an easement in your deed.
this is dead in the water. Just say no.

It sounds like the prospective buyers are going to be Those People.

Ask the buyers solicitor (almost certainly an unqualified conveyancer or paralegal actually) to put in writing how they consider a claim for adverse possession would succeed given the easements contained in your and the neighbours deeds, and that should see them off. There will be crickets.

Not necessarily unqualified @Delphigirl (although I have know many excellent non-qualified conveyancers), possibly scared of unregistered land.

Tell your solicitor to be firm that you will do more than give the statement of truth OP.

I will share my experience as someone who has bought a semidetached maisonette in exact same condition.
It’s very stressful.
sellers have incorporated the side and hear land of an old coal alleyway into their garden.
I was issued an insurance policy for defective title. Sellers straight out lied saying nobody else had access, other than the front but where the neighbours store their bicycles. There was no gate at the hear part of the fence and I thought it was ok.
But right after I moved in, I started the adverse possession process just to learn the neighbours do have easement rights (or claim they have) and the process stopped.

It’s very frustrating/scary/uncomfortable to feel someone I do not know has the right to just walk in. Looking back, I should not have bought that house.

As a buyer, I would advise to stay away. I can’t really image the headache this will give if I have to sell the property and thus you have the constant feeling you overpaid for the property and honestly I don’t understand how these makes sense in a modern world. I fear my kids and my safety if a weirdo moves in.

As a seller you might think it’s ok because it’s always been like that.

The bear minimum is to be fully honest about the neighbours easements so buyers can decide if they live with that or not.
I will be suing my sellers as they strait out lied and thus making the insurance policy void.

Oh I really feel for you, sounds awful.

We haven't lied about anything though. We have been open and honest and explained in detail about the access and made sure they understood what was what as they came back for their 2nd viewing. No-one has access to our garden which is fenced off. Each property has their own fenced off garden that is solely their property but the access to each garden is via this track.

To be honest, I understand that shared access is not for everyone and some people will feel better about it than others and I would understand if we had misled them in anyway. But they didn't appear at all bothered by it when they first viewed.

Yes, they could get someone move in that is awkward about the access but in the 13 years we have lived there, properties have changed hand, people have come and gone, and every single person has respected the access. I know it won't always be this way and its a small risk that you may get someone who causes issues. But you could say that for any property you buy. Any property you buy where you have neighbours you are taking a risk. You risk that your neighbours may park on your drive, block you in, have loud garden parties, play loud music all night, undertake loud building works, have a dog that barks all day etc, so I know its down to the individual whether or not they want to buy a property with an access road that is shared with all your immediate neighbours.

So I guess our buyers have to decide whether our house is for them or not and if the access is a risk they want to take. I know they are buying an amazing house, in a safe, friendly area, with lovely respectful neighbours who are all good friends but I know that they don't know that. No hard feelings if they decide its not for them.

Thank you for all who have replied, given advice and some of you obviously know a little about this kind of thing which has been really helpful and have given me good advice. But its also been interesting to hear from the other side of things from those who have been on the receiving end.

There are no hard feelings towards our buyers. Shared access is not for everyone and there is little we can do to ease their fears other than what we have already offered them. So I guess its up to them whether or not they want to take the risk that one day in the future they may get a neighbour move in that causes an issue.

But as I said in another post. All house purchases are a risk to some extent. Who knows what kind of neighbour you may end up next to/near, even if the ones you have when you first move are great?

Noisy, disrespectful, barking dogs, parking where they shouldn't and all kinds of other stuff. You only have to read the threads on here to see how many neighbour issues people have/get.

People buy and sell and move all the time and if we didn't just go for it sometimes, no-one would ever move.

Must admit shared access across the back would not be something I would like and wouldn't purchase a house with such an arrangement. Stayed at Airbnb earlier in the summer where this was the case - found it a bit off putting especially with having a dog with me. However if this is 100% clear on the sale of the house - the buyers are being cb trying to change it. They clearly need to buy another house.

Well yes, exactly.

When we bought the house it never bothered us that much and it was a compromise we were willing to make because the house was stunning, in our favourite location, and had views to die for. All this outweighed that one small issue, that actually has not ended up being an issue at all.

But I do fully appreciate that this kind of arrangement wouldn't be for everyone and initially it didn't seem to bother them either. Like I said, we were fully transparent about the access rights and hid nothing, because we wanted to make sure that anyone who purchased the house were fully informed. They chose to make an offer and now they seem to have an issue with it.

But it is what it is and we can't change it and if they can't get on board with it and are having this much of an issue with it then maybe its just not the house for them.

To be honest, if they are going to pull out I would rather they do it now and not push on if they are not 100% on board with or they could end up getting cold feet at exchange of contracts which would be gutting for everyone involved.

I have shared rear access for cars. Each garden has a drive and/or garage at the end. We own (incl neighbours) all the land, so in effect, we all own a little of the shared access. It's private. Some have gates, some don't. However, our access to this rear access is via a big company owned land. It was quite clear that permission to access the rear of our properties was granted through the company and could be denied. That sounds scary but knowing the company, area and history, age of houses etc. I knew it wasn't something to put me off. I can see it putting off potential buyers that don't know the area or are a bit new to property buying.
I'd tell them it's non negotiable and hope they go away pronto to save you wasting your time.

I agree with a pp that the buyers' legal rep has got it wrong. You can't claim adverse possession on an existing easement which is detailed in the property's registration, it's simply that you enjoy the access and it can't be taken off you.

Unfortunately quite a lot of conveyancers can’t exercise risk assessment, but to be fair their job is half one of arse covering. I was going to say to offer them a statutory declaration and they can do it after if they want, that is what I did when their was a defect in the title of my first house. If they won’t do that then I reckon wack it back on the market asap and they can think about it for as long as it takes for you to get an acceptable offer, then either go ahead or lose it. They are being idiots by the way, they need to buy the house as it is and readjust their expectations.

You could always put your garden boundary back where it should be, reinstating the alley and avoiding any chance of someone accessing your property.

You are right, I could. But that's not what I paid for.
And, even if that's what I end up doing in the end, I should not be the one paying for it (it would involve huge costs redoing the garden they designed in the first place). The sellers straight out lied to me (including in the statement of truth) and also to the insurance company. One could argue they committed fraud.

If you can proove that start a claim against them. They shouldn’t be allowed to get away with this. Also is the purpose of the insurance policy you took out not to cover issues like this?