Embankment Boundary

[Combs]

I moved into a small village in the Peak District just over 3 years ago and my Boundaries are adjacent to a railway embankment covered in woodland, the house was built in 1920's and extended over the years with the latest extension built in the 1980's, the house is on its own at the end of a lane and is a secluded property.
The previous owners have put a fence at the foot of the embankment back in 2007 and used the additional area as a garden over the years and maintained it bringing in plenty of wildlife, i assume other previous owners have also used the additional space over previous years prior to the fence being erected.
We were made aware of this when we purchased the property but with it being secluded and no issues being raised previously didn't see it being an issue.
NR have been surveying the trees as they have some planned work tree maintenance work at the end of July, have noticed a discrepancy with the boundary and have issued a letter regards encroachment onto NR Land and they have no record of any prior agreement to use this land and to contact them!
I could do with know where is stand 1) with regards to claiming the land or 2) coming to an agreement to keep using and maintaining the land?

Any advice would be gratefully received

TIA
Paul

 

[skyhigh]

We were made aware of this when we purchased the property but with it being secluded and no issues being raised previously didn't see it being an issue.

Then I'd talk to whoever did your conveyancing/legal work during the purchase ASAP.

 

[John R]

One obvious question is where is the boundary of the land you purchased shown on the title registered with the Land Registry. You really should have a copy of this, but if not you can get one online for a very modest fee.

If it doesn’t include the additional part in dispute you’re on very difficult ground. (In some circumstances you can claim adverse possession if you can prove uninterrupted use of the land for 12 years, but that would involve a battle with NR in court.) Either way, I suspect Network Rail’s financial capacity to dispute this in court will exceed yours in terms of defending a claim.

I’m current aware of an ongoing land dispute very close to us, and what I’ve learnt from that is that the potential legal fees in the event of a dispute can be eyewateringly high.

 

[StoneRoad]

I moved into a small village in the Peak District just over 3 years ago and my Boundaries are adjacent to a railway embankment covered in woodland, the house was built in 1920's and extended over the years with the latest extension built in the 1980's, the house is on its own at the end of a lane and is a secluded property.
The previous owners have put a fence at the foot of the embankment back in 2007 and used the additional area as a garden over the years and maintained it bringing in plenty of wildlife, i assume other previous owners have also used the additional space over previous years prior to the fence being erected.
We were made aware of this when we purchased the property but with it being secluded and no issues being raised previously didn't see it being an issue.
NR have been surveying the trees as they have some planned work tree maintenance work at the end of July, have noticed a discrepancy with the boundary and have issued a letter regards encroachment onto NR Land and they have no record of any prior agreement to use this land and to contact them!
I could do with know where is stand 1) with regards to claiming the land or 2) coming to an agreement to keep using and maintaining the land?

Any advice would be gratefully received

TIA
Paul

Get an experienced legal person, one that knows the subject, as soon as you can ...

property boundaries can be a minefield and disputes very costly.

 

[Fawkes Cat]

In terms of the law, I have absolutely no idea - but it does seem to me that National Rail will likely be very keen indeed to keep possession of operational land. And that won't just be the land that has railway tracks on, but the land necessary to hold the tracks up. As you are at the bottom of an embankment, it seems obvious that all of the embankment will be included, and I can also imagine (n.b. I am not a lawyer: neither am I a railway construction engineer) that it will include some level ground beyond the embankment to allow for drainage, access to maintain the embankment and so on.

 

[skyhigh]

that National Rail

Hopefully not being too picky here, but the body involved will be Network Rail, not National Rail.

 

[InOban]

I believe that modern embankments are less steep than 19th century ones and NR may wish to ensure that they have the space to change the profile. You could offer to accept their boundary but ask if you can continue to garden it until they need it.

 

[DarloRich]

Speak to your solicitor asap.

 

[Fawkes Cat]

Hopefully not being too picky here, but the body involved will be Network Rail, not National Rail.

You are, of course, correct.

 

[Ediswan]

In terms of the law, I have absolutely no idea - but it does seem to me that National Rail will likely be very keen indeed to keep possession of operational land. And that won't just be the land that has railway tracks on, but the land necessary to hold the tracks up. As you are at the bottom of an embankment, it seems obvious that all of the embankment will be included, and I can also imagine (n.b. I am not a lawyer: neither am I a railway construction engineer) that it will include some level ground beyond the embankment to allow for drainage, access to maintain the embankment and so on.

I read it as the OP being at the top of the embankment.

The previous owners have put a fence at the foot of the embankment back in 2007 and used the additional area as a garden ...

 

[matthenj]

NR Land and they have no record of any prior agreement to use this land and to contact them!

Kind of them to admit they haven't given you permission to use the land - adverse permission should be straightforward if photos dating back 12 years or more can be found.

Shouldn't be too hard, that's only 2012.

 

[Benjwri]

I read it as the OP being at the top of the embankment.

I would read it as the OP being at the bottom, the foot would generally be at the base.

 

[LYradial]

Kind of them to admit they haven't given you permission to use the land - adverse permission should be straightforward if photos dating back 12 years or more can be found.

Shouldn't be too hard, that's only 2012.

Mu understanding after reading the gov. Website is that the occupation has to be continuous by the same person for all the twelve or ten years.

 

[Fawkes Cat]

I read it as the OP being at the top of the embankment.

Assuming that it is an embankment (i.e. railway on top) and not a cutting (railway at the bottom) I can't see why Network Rail would have any interest if the OP was at the top, in that that would mean that there was no railway up there any more.

 

[Benjwri]

It’s worth adding that unlike claimed above, this is not a simple adverse possession case, even if all the criteria for adverse possession are met, as @LYradial says they may not. The Railway has its land through acts of parliament and is a statutory undertaker, so that would complicate things and mean it probably would have to be dragged through the courts.

I have also checked another place I know of where there was a discussion about this, and the advice of a solicitor in the end was that adverse possession was not possible on railway land. Adverse possession requires you to not have permission of the land owner, however this is also trespass which is a criminal offence under Section 16 of the Railways Act 1840 when on railway land. As you cannot obtain rights to a property through a criminal offence you cannot adversely possess it.

 

[The exile]

Also worth bearing in mind that “ownership” probably comes in a package with liability. As stated several times - consult a solicitor with the relevant experience.

 

[Ediswan]

Assuming that it is an embankment (i.e. railway on top) and not a cutting (railway at the bottom) I can't see why Network Rail would have any interest if the OP was at the top, in that that would mean that there was no railway up there any more.

Personally, I would not be making the assumption that the term 'embankment' is being used in that precise manner.

 

[snowball]

Personally, I would not be making the assumption that the term 'embankment' is being used in that precise manner.

But you then still have to explain the OP's use of the word "foot", which to most people does not mean "top". Unless you think the previous owner tried to include the slope in their garden.

 

[Combs]

I believe that modern embankments are less steep than 19th century ones and NR may wish to ensure that they have the space to change the profile. You could offer to accept their boundary but ask if you can continue to garden it until they need it.

yes i have to speak to the Community relations team, they seem to be open to discussions regarding this idea.

But you then still have to explain the OP's use of the word "foot", which to most people does not mean "top". Unless you think the previous owner tried to include the slope in their garden.

its the foot of the embankment, level area!

 

[12LDA28C]

I believe that modern embankments are less steep than 19th century ones and NR may wish to ensure that they have the space to change the profile. You could offer to accept their boundary but ask if you can continue to garden it until they need it.

Where has the OP suggested that NR have any intention of changing the profile? It was specified that the maintaining of trees on the embankment was planned, that's all. However railway land is railway land and it wouldn't be the first time that owners of private properties have attempted to encroach on the railway.

Personally, I would not be making the assumption that the term 'embankment' is being used in that precise manner.

That's the assumption I made on reading the original post. On the top of a railway embankment you would normally find the railway. Maybe some clarification is required. *Edit - confirmed in post #19.

 

[Snow1964]

In meantime dig out the pack your solicitor/conveyancer would have forwarded after completion.

Bound to be a copy of title and boundaries as filed with land registry (marked with red line), but due to scale of plan and thickness of red line, not really accurate under about half a metre. Perhaps one day Land Registry will move to accurate digital mapping.

 

[snowball]

That's the assumption I made on reading the original post. On the top of a railway embankment you would normally find the railway. Maybe some confirmation is required.

The OP has already confirmed in #19.

 

[12LDA28C]

The OP has already confirmed in #19.

Just seen that - edited.

 

[Ediswan]

But you then still have to explain the OP's use of the word "foot", which to most people does not mean "top". Unless you think the previous owner tried to include the slope in their garden.

That is exactly how I read it. Seems I was wrong.