Q: I wonder if your legal experts might be able to give us some advice regarding a boundary issue?
We are a converted block of six flats surrounded by its own grounds. At the back of the building is a long strip of grass approximately twelve feet wide which separates our domain from the one opposite (an enclave of small houses & flats overlooking a large courtyard). Our actual boundary line is not the whole of this grass area but bisects its length, leaving our neighbours with about three feet of its width on their side.
For a number of years we have employed a firm to do all our grass-cutting both front and back. Generally, while doing the back the firm has also included the narrow strip belonging to our neighbours which runs the length of the area. Since this additional cutting has not involved us in any substantial extra charge (and keeps the whole thing looking simultaneously streamlined) we have never bothered to direct otherwise. However, there is a very tall, rather shallowly rooted Kazan cherry tree planted just over the boundary line on our neighbours’ side, and around which our grass-cutters operate.
One of our directors is concerned about this as she has recently heard that if maintenance is carried out for a specified number of years (perhaps ten?) on an area belonging to another, then responsibility for that area is de facto conferred on the party doing the maintenance. Therefore if that is the case, then presumably were the tree to be blown down or one of its branches fall and hit a child or a car we, as the maintainers, could be held responsible.
Naturally, if the above is legally correct we shall instruct our grass-cutting firm to cease activity beyond the boundary forthwith! If you can shed any light on this I should be most grateful, and will supply any extra information you may need.
FPRA Legal Adviser Nick Roberts replies:
Your email of 12 September has been forwarded to me as Legal Adviser to FPRA Ltd. I can understand your concern about this. Unfortunately, it may not be easy to give you a definitive answer.
What you fellow-director must be thinking of is the possibility that one may acquire legal title to land by adverse possession: what is popularly called “squatters’ rights”. Essentially, if possession of land is enjoyed for 10 years (in some circumstances 12 years), and the real owner does not object, it is possible for the adverse possessor to acquire the title to the land. It is very unlikely that this would apply here:
(1) First, it is unlikely that merely mowing a strip of grass, even regularly, could amount to taking possession of it. What amounts to possession depends on the precise nature of the land, but generally it will involve not only treating the land as one’s own, but also excluding all other persons, including the real owner. Unless I have misunderstood the factual scenario, that element does not seem present here. So simply mowing the grass is unlikely to suffice.
(2) Second, although it is possible to acquire title to unregistered land – land which is held under traditional title deeds – by adverse possession for 12 years, and this can, in effect, come about automatically, if the land owned by your neighbour is registered at the Land Registry (and these days, this is far more likely to be the case), then however long one is in possession, one does not acquire title unless one applies to the Land Registry to be substituted as the owner. In some, but not all, cases the real owner then has an opportunity to object.
For either of these reasons it is unlikely that your company will ever acquire title to the strip of land which belongs to your neighbours.
Unfortunately, this does not entirely answer your question, as someone who came on to the strip of land and was injured would be suing under one of the Occupiers’ Liability Acts. Liability as occupier is based on the fact of occupation. The test for occupation may therefore be satisfied more easily than the test for adverse possession. Further, there are no set time periods involved. One cannot therefore rule out the possibility that, by mowing the grass, you would be taken as having assumed occupation for the purposes of the Occupiers’ Liability Acts.
That said, I think it is unlikely that you would be held liable. Someone who was injured on the land, or by the tree, is likely to find out who the owner of the land is, and then to sue him or her (who will then pass the claim on their insurance company). Generally if one is the owner of land, and there is not someone else who is more clearly ‘in occupation’ (such as a tenant or licensee) then the law will proceed on the basis that the owner is the occupier, unless there is some good reason why they should not be held to be in occupation.
I would also add that, if the tree were to be blown over, and injure someone who was passing by, it is not clear that this would be an occupiers’ liability claim. If, for example, a building is in disrepair and some part of the structure falls off, that would usually be treated as liability on the part of the owner, rather than as occupier. It does not seem logical for you to become liable for a tree simply by mowing the grass around it. Further, your block insurance policy should cover the liability of the company as occupier, and it would seem unduly harsh and restrictive for insurers to attempt to wriggle out of liability on the basis that you were in occupation of a slightly larger area of land than you actually owned. I suspect that any judge would lean against interpreting an occupiers’ liability policy in a way which would cause injustice.
That said, I do not think it is possible to say that you might not be held to be in occupation of the extra strip of land beyond the boundary. You might take the view that you are not willing to run any level of risk at all. If you take this view, and you still want to keep the grass properly mowed, then would it be practicable to write to the owner(s) concerned asking if they have any objection to your continuing to mow the grass purely as a matter of convenience, but on the understanding (of course) that they would remain liable for it? If that were recorded in correspondence, I think it would be difficult for the owner(s) to argue that you were now the occupiers for the purposes of the Occupiers’ Liability Acts.
[Submitted September 2016]