Uncles property been adversely possessed without us knowing

[yorkshirejames]

Hello, and I wonder whether anyone can offer any insight:

An uncle has died last month, and various administrative matters are being sorted. He owned four properties. Everything is fine with three of them.

The fourth is/was a semi-derelict rural property which hasn't been habitable for around 40 years (though has been in his ownership for that time, and previously his father), which he was planning (apparently) to restore and live in when/if he properly retired. As far as we knew, this property was unregistered (I now understand that voluntary first registration could have afforded some protection). The deeds are in the vaults of the solicitors whom he used.

Anyway, upon looking into this property, a third party was granted Possessory Title of this property in 2011. I understand from a conversation with the Land Registry that this means that a third party has made an adverse possession application, and has asserted that they were in 'possession' of the property from 1999-2011.

To the best of my knowledge, this is incorrect. I myself visited the property with him in approx 2004, and the uncle visited the area annually until last year (staying in a hotel, but always looking at his property). It fronts directly onto the highway, and there is a small stone-walled rear garden.

Questions please:
-can we do anything, or is it now too late?

-is it possible for someone to adversely possess a property without this being apparent to the true owner or anyone else?

-is it recommended to negotiate with this third party (possibly by paying them off) or do they have the full right to sell this property for 100% market value?

If someone can give some suggestions that this isn't a hopeless cause, we will look to instruct a property solicitor (location of property is North Wales, if relevant).

However, based on some 'internet' research, I sense that it is too late, and that rightly or wrongly, this property has been legally stolen from under our noses.

Comments welcomed

 

[David A]

You first need to download/request the HMLR publications on adverse possession.

One of the key aspects of obtaining adverse possession is to provide evidence to HMLR that you have possessed the property continuously throughout the period to the exclusion of others.

If you say you have visited the property in 2004, and your uncle annually (hopefully you can gain evidence of the hotel stay) then you would have known if someone had taken possession. This is because the locks would have been changed, or if only land that it had been fenced off.

Also, do some background research. In England and Wales a property is only entitled to nil council tax for a limited period. Did your uncle pay the council tax; has the third party taken over the council tax or other utility bills?

At the least you will need to swear an affidavit that you visited and no other person had taken possession.

 

[yorkshirejames]

You first need to download/request the HMLR publications on adverse possession.

One of the key aspects of obtaining adverse possession is to provide evidence to HMLR that you have possessed the property continuously throughout the period to the exclusion of others.

If you say you have visited the property in 2004, and your uncle annually (hopefully you can gain evidence of the hotel stay) then you would have known if someone had taken possession. This is because the locks would have been changed, or if only land that it had been fenced off.

Also, do some background research. In England and Wales a property is only entitled to nil council tax for a limited period. Did your uncle pay the council tax; has the third party taken over the council tax or other utility bills?

At the least you will need to swear an affidavit that you visited and no other person had taken possession.

Many thanks for the response. The property is derelict, and such a property is exempt from council tax as long as it is uninhabitable. Likewise, as it hasn't been occupied for so long, there are no live services into it. I assume keys are among his effects.

When he visited (certainly, the time I went) this was limited to driving past and looking.

Are we on a hiding to nothing?

 

[David A]

When he visited (certainly, the time I went) this was limited to driving past and looking.

That need not be a problem, but you can't hang around with this.

The key word that the third party has to satisfy is 'possess'. It does not mean merely to apply for possession, but has to state that the possession was such that a reasonable person would be satisfied that the original owner was no longer able to access the premises/land. The third party must swear an affidavit that this has been the case for the previous 12 years.

Thus, if land it must normally be fenced off and used for storage or vegetable growing or something. If a building, it must be secured to permit only the third party access.

It follows then that if when you drove past the property was not secured preventing your or your father gaining access, then possession has not been made. Thus the adverse possession claim is false.

 

[doi_swilkinson]

This is the next big property guru's pay x amount of £000's and I will teach you how to do it ,I sat through a brief outline of this last year Google Peter Hogan,if you can glean how he does it you may be able to do it in reverse

Stefan

 

[yorkshirejames]

It follows then that if when you drove past the property was not secured preventing your or your father gaining access, then possession has not been made. Thus the adverse possession claim is false.

I've no idea whether locks etc have been changed, however there was nothing visually untoward when I passed several years ago, nor (I presume) when he was there last (summer 2011 I think).

 

[yorkshirejames]

This is the next big property guru's pay x amount of £000's and I will teach you how to do it ,I sat through a brief outline of this last year Google Peter Hogan,if you can glean how he does it you may be able to do it in reverse

Stefan

I do understand how adverse possession works, however I guess I'm just surprised that it has (apparently) been used against a family member who hadn't abandoned their property at all.

 

[David A]

I've no idea whether locks etc have been changed, however there was nothing visually untoward when I passed several years ago, nor (I presume) when he was there last (summer 2011 I think).

Well, it seems to be that you do have cause to refute the claim that the third party possessed the property, so you need to contact HMLR and tell them that you want to dispute the possessory title.

It is not enough that the third party merely changed the lock, they have to possess the property to the exclusion of the owner. Thus you need evidence that 'possession' did not take place. If, as you say, the property was derelict plus no utilities and council tax being paid then possession for the 12 required years clearly could not have happened as firstly the place was uninhabitable, and secondly if the third party did take over the property no renovations during this period took place to make it habitable - and if they were, you or your uncle with have noticed when you did the occasional drive past.

The third party would have had to supply HMLR with at the least an affidavit, normally supported by evidence, that the adverse possession took place for the required period. You need to see a copy of this.