Human beings, like many other species, are deeply territorial. This is perhaps why disputes over land, if left unchecked, can quickly escalate, even more so where the dispute concerns someone’s home. Typically issues arise when someone new moves in next door or when building works are to be carried out that may impact on a neighbour’s enjoyment of their property. Emotions can cloud judgment and the law is complex. Involving a lawyer to help clarify the legal issues and who is experienced enough to conduct the dispute in an appropriate matter (whether that be with diplomacy or by putting their foot down), can be invaluable.
Boundary disputes are common-place. Those involved often passionately defend the integrity of their boundaries. Emotions can run high and reason can easily go out of the window. However it is important to give calm and careful consideration at the outset as to the best way of resolving Boundary disputes. Legal boundaries often do not accord with physical boundaries on site. Identifying legal boundaries is rarely possible without the assistance of a solicitor and a surveyor. To complicate matters legal boundaries can evolve over time, for example if one party has occupied land and used it as their own for a long time. It is important to obtain legal advice from a solicitor specialising in Boundary disputes as soon as possible. This is particularly important where the dispute concerns two neighbours. Effective representation may avoid a long, bitter and costly dispute. A useful and structured approach to resolving boundary disputes is set out in a draft Pre-action Protocol for Boundary disputes published in September 2017. Whilst not a legal requirement, we have been early adopters of the Protocol and advocate its use. The Protocol provides for the sharing of title deeds, agreement as to the conveyance that created the boundary, the marking of this boundary on the ground and, then, only if necessary, exchange of evidence as to other issues such as adverse possession.
‘Love thy neighbour’. These are wise words, if possible. Regardless of the outcome of any neighbour dispute, your neighbour will still be your neighbour after the dispute has run its course, meaning that if not handled appropriately, difficulties may continue indefinitely and may escalate further. In the long run, an amicable resolution is often the best solution, which means not taking an overly aggressive stance. Unfortunately though, if you are dealing with an unreasonable or irrational neighbour, dealing with the matter informally over a cup of tea may just not be an option. Sometimes, a robust, no nonsense approach is required. The most common causes of disputes between neighbours include noise, taking down or erecting boundary walls and fences, building works, tree branch and root encroachment, dust and odours. Issues arising from the construction of extensions or basement conversions can be particularly problematic.
A party wall is a wall erected on the boundary between two properties. Works carried out to or near party walls are regulated by the Party Wall etc. Act 1996 which is designed to ensure that such works are carried out in a safe and controlled manner to the satisfaction of a party wall surveyor. Before carrying our such works, the person carrying out the works should serve a party wall notice to initiate the statutory procedure. In most cases if there are then any issues, they are resolved by the parties’ surveyors. However in many cases building owners ignore the Act or are simply unaware of its existence. Where this happens, the neighbour would normally be entitled to an injunction to stop the building works from continuing. Also damage caused to the neighbour’s property would be breach of statutory duty. We can advise on whether the Act applies, the procedures under the Act and can both bring and defend injunction proceedings where notices have not been served or the procedures under the Act have not otherwise been followed.
Access & Rights of Way
It is fairly common for vehicular and/or pedestrian access to a property to be over someone else’s land. Usually there will be an express right of way in the homeowner’s title entitling the user to do this, but sometimes there is not. Issues can also arise with shared driveways or where there is limited space for parking, leading to access being obstructed, perhaps unintentionally. There can also be issues where there is a significant increase in use of the right of way, for example after or whilst a new housing estate has been/is being built. To complicate matters, rights of way can arise through long use and in limited circumstances they can be abandoned. Some properties also have public footpaths running across their gardens or drives.
We regularly advise on the nature and scope of both private and public rights of way and, where appropriate, take enforcement action to prevent the unlawful or excessive use of access routes.
Flooding and water ingress can be catastrophic. However it is not always clear where the water is coming from or who is responsible. It may be leaking from a mains or private pipe, it could be surface water run off or from an underground stream. We work closely with water ingress and flooding experts and help determine the cause and who is responsible, before taking action to force the party responsible to carry out appropriate remedial works and to pay damages.
A property owner has a legal right to enjoy their home in peace. If a neighbouring or nearby land owner does (or fails to do) something that substantially interferes with that person’s enjoyment of their home, it may give rise to an actionable nuisance. Nuisance can take the form of noise, dust, smoke, strong odours, bright lights or land contamination. We can take steps to stop the continuance of nuisance, if necessary by obtaining an injunction. We can also assist those accused of nuisance.
Japanese knotweed is a highly invasive weed that can grow up to 20cm per day up to height of 4 metres. Its roots can burrow 3 metres deep and spread up to 7 metres horizontally. Due to its rapid growth, it can cause structural damage by creeping into bricks, cavity walls and building structures. Knotweed can spread from nearby land and is particularly prevalent on railway embankments. It is perhaps therefore unsurprising that the leading case on knotweed involved Network Rail. Working with expert knotweed specialists, we are able to assist home owners in identifying when and how knotweed spread to their property and, in appropriate cases, we can assist them by bringing claims against those responsible.
When you buy a property, the principle of ‘buyer beware’ applies. This is why many purchasers pay for a full building survey and why conveyancers ask detailed questions (called ‘pre-contract enquiries’) regarding boundaries, neighbour disputes and knotweed. That way buyers have as much information as possible and they can make an informed decision. Even so, there could be problems with the property that do not become apparent until the buyer moves in. Two exceptions to the ‘buyer beware’ principle are fraud and misrepresentation. In other words, if the seller (or their agent) lies to you during the sales process or in pre-contract enquires and that lie induces you into buying the property (i.e. you would not have bought the property you been told the truth), the buyer may have an action in misrepresentation, which depending on the circumstances of the case, could entitle them to damages and/or to rescind the contract (i.e. to return the property to the seller and be refunded the purchase price). We help disgruntled purchasers ascertain whether they have a claim, the remedies available and then take appropriate action against the seller.
Claims relating to adverse possession are common. Every year the land registry receives 100s of application seeking to register title to parcels of land all over the UK. The applicants do not have any deeds proving ownership; their applications are based solely on the applicants’ long use of the land. Many of these applications are disputed and become the subject of court proceedings or are refered for tribunal determination by the land registry. Adverse possession frequently arises in connection with boundary disputes where one party cannot prove paper title, but where perhaps they are relaying on the current physical boundary and that has been in the same place for over 10 years.
In most cases, adverse possession requires 10 or 12 years possession (depending on a number of factors). There are grey areas as to what constitutes ‘possession’, but fencing off is often sufficient and in some cases re-surfacing has been held to be sufficient. Timing is very important in these cases for both parties. In order to preserve their entitlement to recover their land, the paper title owner, if they are aware of the position, may need to issue a possession claim. In contrast, the possessors will often wish to keep their heads down until they have clocked up enough time to make a claim. We provide advice as to the evidence required to support or defend a claim for adverse possession and whether to apply to court or the land registry and have extensive experience in conducting proceedings in both forums.
Defective Building Works
It is often more cost effective to increase your living space by building an extension or carrying out a basement or loft conversion than it is to move house. Most builders and contractors are polite, professional and charge a fair price. However there are ‘cowboys’ out there and it is a good idea to select a builder or contractor based on recommendation. When issues arise, they tend to relate to poor quality workmanship, projects taking too long, contractors abruptly ‘dropping tools’ or uncertainty as to the price, typically arising when ‘extras’ are charged that the homeowner thought was part of the contract price. Few homeowners enter into proper contracts, leaving lawyers having to determine the terms of the contract from the content of emails, text messages, badly worded quotes and invoices and verbal, often disputed, discussions between the builder and their customer. We advise homeowners on how best to deal with these situations and help them find a way for the works to be completed to a satisfactory standard and/or to recover damages from the builder.
Trespass is the unlawful occupation of land without the permission of the owner or their tenant. The most common form of trespass is squatting, often by travellers, but also on occasion by protesters. We have also seen instances of fraudsters changing the locks to vacant properties, advertising them to let on the internet, signing up ‘tenants’ to a fake tenancy and taking a large payment off them before giving them the keys to the property. Whilst victims of crime, those occupants are also trespassers as the tenancy agreement is void for fraud.
It is now a criminal offence to squat in residential property, so your first port of call where this happens should always be the police. However the police are overstretched and are not always willing or able to assist. In these circumstances, it may be necessary to apply to the civil courts to obtain a possession order and to instruct bailiffs to evict. This can be done fairly quickly, usually within a couple of weeks.
We advise land owners and occupiers on all aspect of trespass and have particular experience in evicting squatters, including large encampments, through both the courts and by negotiation working with specialist negotiators. We can react quickly and effectively and can usually get someone on site on the same or next day.