News for Individuals
Homeowners warned to watch out for squatters
Homeowners wanting to protect their property value should invest time in checking out their boundaries and making sure they don’t have squatters.
David Hollingworth, property law expert with Andrew & Co LLP says: “Mention squatters and most people think of someone who has made themselves at home in an empty property. But squatters’ rights, or adverse possession as it is known in law, can happen in all sorts of property ownership situations, including boundary disputes. They can easily turn into a property owner’s worst nightmare and in a tougher property market, buyers are more likely to dig deeper and come across such problems.”
Adverse possession is the law’s way of barring stale claims to land and recognising lengthy possession as giving a kind of title to land. The Land Registration Act 2002 sets out the requirements and procedure for claiming what is known as possessory title.
To be successful, the person claiming must have been in possession or control of the land in question to the exclusion of the legal or paper owner for at least ten years. If the paper owner interrupts the squatter’s possession, even for a short period, the ten year period begins again.
But a recent case that went all the way to the Court of Appeal has highlighted just how far the paper owner must go to secure that interruption.
In 2002 Mr and Mrs Zarb bought a house next door to Mr and Mrs Parry. Some years earlier a strip of garden had been sold by the Zarbs’ predecessor to the predecessors of the Parrys. The buyers thought that the boundary was marked by a hedge on the land, but this was about 12 feet beyond the true boundary.
When the Zarbs discovered the error in 2007, they decided to take back what was they believed to be their land. They went onto the disputed strip, removed a tree and some fencing erected by the Parrys and started to put in fence post along the actual boundary line shown in the deeds.
But they had been there for only twenty minutes when the Parrys discovered them and made them leave. Subsequent negotiations with expert advice to agree the disputed boundary failed and the neighbours went to Court, finally ending up in the Court of Appeal, where the Zarbs tested what amounted to “interruption” of adverse possession. They also claimed that the ten year period had not been satisfied, arguing that their predecessors had given consent for possession of the strip of land.
The Court of Appeal agreed that the true boundary was where the Zarbs thought it was, but judged that the Parrys had acquired ownership by lengthy squatting, saying that the 20 minute action by the Zarbs did not amount to interruption. The Court ruled that interruption required the paper owner to have exclusive control of the land, even if that control only lasted a short time, which had not been satisfied in this case.
David Hollingworth also observed that: “If the Zarbs had been more careful in checking the situation when they bought the property, or in taking advice on how they could lay claim to the land, they would have stood a stronger chance of a successful outcome.
“This case highlights once again how important it is to investigate any issues over boundaries or the like. Once matters have been aired and settled, then the outcome should be recorded in the deeds. If things can’t be resolved amicably, then this sort of dispute is best dealt by mediation. Going to court is a very costly and lengthy option.”
David added: “If you are selling your property it is absolutely vital to be open and truthful about any boundary disputes or discrepancies. If you do not volunteer full details you might find yourself being sued for misrepresentation some years later, because if one thing is certain, it is that boundary disputes never fully die.”
Pre-nuptial agreements
The Supreme Court has finally delivered its long awaited Judgement in the case of Radmacher–v- Granatino bringing about a change to the way in which the English Courts deal with pre-nuptial agreements.
Previously in England and Wales, unlike other European countries such as France and Germany, pre-nuptial agreements were not legally binding and although Courts were increasingly taking them into account when deciding financial settlements in divorce, it was impossible to rely on them with any certainty.
The decision in the Radmacher case means that in future, it should be possible for couples to make pre-nuptial agreements knowing that in most cases, if they are properly prepared with good legal advice, they should be watertight in the event of future divorce proceedings.
Judges found in favour of the 40 year old German heiress Katrin Radmacher who signed a pre-nuptial agreement with her French husband Nicolas Granatino in Germany before their wedding in 1998. The agreement stipulated that neither party would benefit financially if the marriage ended. Ms Radmacher sought to protect her fortune amounting to £106 million Mr Granatino, aged 38 had given up his six figure investment banker’s job to become a bio-technology researcher at Oxford University earning £30,000 per year in 2003, the year the marriage began to deteriorate
When the couple divorced in 2006, Mr Granatino claimed that when they married he had no idea of his wife’s wealth and had not received proper legal advice or had the German pre-nuptial agreement translated for him before he signed it.
Despite regular visits to Ms Radmacher’s Chelsea flat and her family’s ski chalet in Verbier and the family home Mr Granatino said that her wealth was not particularly evident, adding that the family home had “shared bathrooms and no great art”.
In 2008 he was awarded £5.85 million by the High Court. Ms Radmacher appealed and in 2009 this was cut to a lump sum of £1,million in lieu of maintenance with a £2.5 million fund for a house until the youngest of the couple’s two daughters (now 7) reached the age of 22.
In today’s Supreme Court decision, the judges decided that Mr Granatino was extremely able and had left his career in the city because of his own preferences, not motivated by the demands of his family. His financial needs were met by the settlement. Fairness should not entitle him to a portion of his wife’s wealth, received from her family independently of the marriage, when he had agreed he would not be entitled to it at the time they married.
Ms Radmacher added in a statement following the Judgement “for Nicolas and I, in our homelands – France and Germany – these agreements are entirely normal and routine. We made a promise to each other that if anything went wrong between us, both of us would walk away without making financial claims on each other.”Those agreements which are routine in many other countries look set to become commonplace in England, too, following the ruling
Some commentators have said that in this ruling, the Court has overstepped its role of interpreting the law and actually created a new law instead.
The Government law reform body is studying pre-nuptial agreements, with a draft bill expected to be introduced into Parliament in 2012 which means that a new law could be in place by 2014.
This landmark case has now already changed the way in which Courts will deal with pre-nuptial agreements in future.
Lawyers are currently assessing the complex and lengthy Judgement made by the Supreme Court and the effect it will have upon pre-nuptial agreements for couples
It is extremely important to get the right expert advice if you are considering a pre-nuptial agreement.
At Andrew & Co LLP we have a highly experienced and specialised legal team who can offer up to the minute advice about any family law issue, including pre-nuptial agreements.
