Ownership Of Property Problem

andrew1977

Hi Folks
Posting on behalf of an elderly relative, they are getting legal advice also but i am interested in your opinion on this complicated one .

Aunt owns under 1 acre of land on which her house sits, to the side of her house are old sheds which her brother has used for feeding animals for over 40 years.
My aunt now wishes to make an enxtension to her house, her brother objects claiming "ownership and right of way to sheds " . Sheds would need to be demolished for a house to be built, Sheds are in a diabolical state, unused for over 1 year and very little maintenance done on them, no rent/electricity cost ever paid to my aunt.
Uncle signed legal waiver to the property and all contained on it many years ago , copy of which my aunt has and also in her solicitors

Where does she stand legally as she wants to get the sheds knocked , apart from wanting to extend her house, they are an eyesore and possible a health and safety issue at this stage,
Has her brother got rights or how is the best resolution for my aunt ?

Any help or pointers greatly appreciated, as said she will be taking legal advice and wants it over asap, her brother is being awkward and she is full registered owner in the land registry and no agreement on use of her garden etc, right of way granted appear on the house deeds/land registry documents

many thanks

Rhonda9000

Not so hot on land stuff, however the right of way claim / easement on your aunts land may be troublesome (may restrain her from building over it etc) for her as it is registered and non-use for 1 year, diabolical state etc. is definitely not sufficient to implicitly extinguish the easement.

But on the other hand..

Does she own the entirety of the land including the land the sheds are built on? You cannot have an easement (e.g. right of way) over your own land.

The signed legal waiver is interesting - there may have been an express release of the easement by a deed or contract, in which case your aunt is in luck.

.. all the best to you solving this one - would like to know the outcome.

Victor

This should probably be settled by agreement, not in a court. I can only assume both are well on in their years.

andrew1977 wrote:

Aunt owns under 1 acre of land on which her house sits, to the side of her house are old sheds which her brother has used for feeding animals for over 40 years. My aunt now wishes to make an enxtension to her house, her brother objects claiming "ownership and right of way to sheds "

The brother is relying on 'adverse possession' stemming from the Statute of Limitations 1957. http://www.google.ie/search?hl=en&q=Statute+of+Limitations+1957&btnG=Google+Search&meta=cr%3DcountryIE

Essentially, if you occupy a property for 12 years and pay no rent, it is yours. There are however a number of tests that need to be fulfilled to prove the occupation. For example, for the brother to occupy, he must exclude all others (unless with permission). If the sheds are within the site of the house and open to your aunt, he isn't excluding her.

The right of way probably comes under 'time immemorial' http://en.wikipedia.org/wiki/Time_immemorial

A right of way probably has to go somewhere - if you can void the adverse possession, I doubt a right of way exists to wander half way across your aunt's garden (it would be sustainable if it went all the way across).

andrew1977

Hi Folks

thanks for the reply, my aunt own the entire property the sheds are built on, for the extension to be built the sheds must come down .
It was a family agreement that her brother could use the sheds but my aunt has now decided to apply for the extension (planning decision due next week , uncle lodged an objection to the application ).
She informed her brother that he she was planning to demolish the sheds and needs the extension to revamp her house .
Hopefully the waiver the brother signed will have some standing ,it expresses his waivering of any rights of claim to the entire land and propertycontained within
My aunt is elderly and has asked me to accompany her to the solicitor, i will keep you posted on any update
Its basically a "stubborn " person who is causing this problem for her, she allowed him to use the sheds for manys a year and never received a penny in rent /electricity contribution .
These sheds were also built without any planning permission ,i presume because they were built over 50 years ago, that the planning authorities would not be interested in this.

Thanks again for the clues, before i go to the solicitor with her,i needed some ideas in my head

templetonpeck

Hi Andrew

Although your uncle may try to claim the land by virtue of adverse possession, it cannot succeed because your aunt has consented to him using it. Adverse possession only comes into play when the owner of the land has not consented to the use of the land.

Furthermore, if there is a family agreement (in writing presumably?) saying that he has the right to use the land, then he can absolutely not claim adverse possession as the agreement shows the intentions of all the parties at the time he entered into occupation of the land. Was there a time limit stipulated in the agreement? Has he paid anything to your aunt by way of rent etc?

You say there is a waiver in place from your uncle in favour of your aunt? If there is a waiver in place, whereby he waives any rights he may have accumulated over the land, then your aunt is very much entitled to rely on this, and do as she sees fit with the land.

Further, I would say that if there is no time limit set out in the family agreement, but a right to use for x purposes and your uncle ceased using the lands for x purposes a year ago that would to me seem to be a termination of the agreement and your aunt is therefore entitled to do as she sees fit with the land.

Let's know how you get on.

andrew1977

hi templeton peck
thank you for the pointers and advice, it will give her a bit of hope (she is in her 80's and could really do without the family feud , she tried to sort it amicably but no joy so having to go leagal )

Nothing in writing to say her brother was allowed use the sheds or garden, it is the original home where they were all reared but the brother left over 50 years ago to get married but still used the shed and garden.Its not even a huge bit of land, under 1/2 acre total size including house and garden.

Yes we have a written document signed by the brother many years ago saying " i consent to said person being made full owner of all land and property contained and make no claim whatsovever "

On the land registry maps, my aunt is registered owner and clearly shows the boundary to the land and her house and sheds clearly marked on it "

One bit more.. is the land registy records the definitive in who owns that said land ?
Her brother has an ordinance survey map which he got done recently where he has marked the sheds as " his property ". Surely this has no leagal standing, otherwise we could all be claiming other peoples property.

Thanks again folks, we could be in for the long haul on this one

templetonpeck

andrew1977 wrote:

hi templeton peck
thank you for the pointers and advice, it will give her a bit of hope (she is in her 80's and could really do without the family feud , she tried to sort it amicably but no joy so having to go leagal )

Nothing in writing to say her brother was allowed use the sheds or garden, it is the original home where they were all reared but the brother left over 50 years ago to get married but still used the shed and garden.Its not even a huge bit of land, under 1/2 acre total size including house and garden.

Yes we have a written document signed by the brother many years ago saying " i consent to said person being made full owner of all land and property contained and make no claim whatsovever "

On the land registry maps, my aunt is registered owner and clearly shows the boundary to the land and her house and sheds clearly marked on it "

One bit more.. is the land registy records the definitive in who owns that said land ?
Her brother has an ordinance survey map which he got done recently where he has marked the sheds as " his property ". Surely this has no leagal standing, otherwise we could all be claiming other peoples property.

Thanks again folks, we could be in for the long haul on this one

The fact that he's used the land for over 50 years, could put her in muddy waters. These family agreements are always so messy, because they're so casual at the time, but inevitably disputes occur.

If he has signed a waiver (I'm assuming she was getting a mortgage or something at the time) that's the best document your aunt can hold. It will and can be sorted out on foot of this. If he has expressly waived any rights to the land he cannot now try and protect them. In fact I think your aunt could take an action against him for defamation of title.

The Land Registry will only register a person as owner if they're satisfied that the applicant has absolutely proved their entitlement to be the registered owner. My understanding is that if your aunt has consented to your uncle carrying on his business after her registration as owner your uncle cannot claim adverse possession, but was there on an implied license. As there are no terms, conditions or time limits linked to the license, I can't see why she can't revoke it.

The Land Registry, subject to their records being up to date, is a definitive confirmation as to who owns lands. It's up to your uncle to disprove her ownership of the field. I'd say the map he has is an ordinance survey map marked out by his architect/surveyor, that's not worth a thing as regards ownership.

andrew1977

Ok , update on the situation , just back from a meeting with the solicitors.

We went through all the details ,pro and cons and as far as the solicitor can tell at present , he is fairly sure at present.

- The brother signing the waiver is going to go very strongly against him
- Adverse possession cannot be claimed, he had authority to use the sheds and garden.
-Planning permission may be granted by the council with a condition that legal ownership be established fully before demolition/building work commences

Solicitor is going to review the file over the next couple of day ,draft up a letter to be sent to aunts brother advising him the next step will be a circuit court action taken against him.
He is going to also get advice from a barrister in the equity courts (is this right ?) and proceed from there .Estimated costs of the court action 15k each side and the loser paying all costs.
Solicitor does not reckon the brother could win , all documents and title of ownership is in my aunts favour
I will post again when i have further updates, thanks to all for their pointers so far (especially templeton ) .
Anyone care to throw any more comments into the mix for me

Victor

Spend the 30 grand building some sheds elsewhere.

andrew1977

Victor wrote:

Spend the 30 grand building some sheds elsewhere.

Very little chance of getting much land these daysfor 30k to build on even for something like sheds

johnnyskeleton

You have consulted with a solicitor - let no one here gainsay that.

I'm surprized this thread has lasted this long.

seamus

Indeed, I know you were initially looking for "pointers", but I would strongly advise that you don't post information about any ongoing or potential legal battle, regardless of how anonymous you think you are.