Problems with Neighbouring Land Owners
Human beings, like many other species, are deeply territorial. This is perhaps why disputes over land, if left unchecked, can quickly escalate. Typically issues arise when someone new buy the property next door (or above) or when building works are to be carried out that may impact on someone’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 issues dispute. 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 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’. This is good advice. 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 could 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 matter informally over a cup of tea may just not be an option. Sometimes indeed 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 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 the 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 them 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.
Obstruction caused by parking can often be an issue where there is shared access or where there is limited space in cities and town centres. You can park on your own land provided you do not obstruct any public or private rights of way that others may have over your land. There is an important distinction between a right of way and a right to park. A right of way does not confer a right to park. Therefore someone with a right of way across your land is not allowed to park on it. Equally, if you have a right of way over someone else’s land, it does not entitle you to park on it. We frequently advise on issues arising from parking. Such issues can usually be resolved fairly quickly with signage and by writing to those parking, but where appropriate we will apply to the court for an injunction.
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 to 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 of their home. 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 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, whilst its roots can burrow 3 metres dep 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 property owners in identifying when and how the knotweed has 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 had 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 referred for tribunal determination by the land registry. Adverse possession frequently arises in connection with boundary disputes were one party cannot prove paper title, but where perhaps they are relying on the current physical boundary and that has been in the same place for a long time.
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 can be 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 of the disputed land 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 prudent 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.
We regularly advise on boundary encroachment by neighbouring land owners and are big advocates of the new Boundary Disputes Protocol with sets out a sensible roadmap for resolving such disputes without recourse to the courts. We also advocate the use of ADR such as on-site mediation and expert determination. It is important to remember that the other party will still be your neighbour after the dispute is resolved. A bitter court battle may not help long-term and would need to be declared if you sold. However, we do recognise that in some cases, swift and uncompromising court action is required before opening a dialogue.
Adverse possession can often be an issue in these cases and we have experience of contested land registry applications for possessory title based on adverse possession, as well County Court and High Court proceedings for possession, injunctions and declarations. Adverse possession can arise where someone has used land as if it was their own for over 10 years and, if established, will be a complete defence to any trespass claim. We can advise you on the full legal test for adverse possession if this situation arises.
Where your property is next door to a refuse tip, petrol station or factory, there is potential for contaminants to seep into or onto your land. Where you suspect that is the case, your first port of call should be the Environment Agency who have extensive investigatory and enforcement powers. They will gather evidence which can be used in a future civil action for damages without you having to incur the cost of doing so. However, it may be that you need swifter action to force the land owner to stop further contamination or to pay for the cost of cleaning up the site, or that you wish to claim damages. This is where we can help. If you believe that your health may have been affected by contaminants you should seek immediate medical advice. If there may be a causal link to any symptoms, you should consult a personal injury lawyer.