Boundary Related Disputes10 mins read
Increasing numbers of developers, neighbours, property owners and occupiers are finding themselves embroiled in disputes in relation to property boundaries and associated rights.
1. Permitted Developments
Issues commonly arise in relation to works which can proceed without the need for planning permission such as the (these are general permitted developments to which exceptions and further requirements apply):
(i) Erection of a fence not exceeding 2 metres in height (including any trellis);
(ii) Construction of a single-storey extension so long as, inter alia:
a. It does not sit forward of the principal elevation;
b. A rear extension is not more than 4 metres in depth from the original building in respect of a detached property or 3 metres in relation to a semi-detached or terraced property;
c. A side extension is not greater than half the width of the original dwelling;
d. The eaves are no higher than 3 metres if the perimeter of the extension is within 2 metres of a boundary or 4 metres in other circumstances.
N.B larger rear single-story extensions may be permitted with prior notification providing the proposed area falls within prescribed limits.
(iii) Construction of a rear double-storey extension on a detached property with prior approval so long as, inter alia:
a. It is not more than 3 metres in depth from the original dwelling;
b. The extension does not exceed the height of the original dwelling;
c. The perimeter is not closer than 7 metres to the rear boundary.
(iv) Construction of an outbuilding such as a shed, so long as, inter alia:-
a. The collective ground area of additional buildings does not cover more than 50% of the garden space;
b. They are not forward of the original dwelling (unless more than 20 metres from the roadside);
c. They are single-storey with a maximum ridge height of 4 metre for a pitched roof or 3 metres for any other kind of roof (2.5 metres if the outbuilding is within 2 metres of the boundary).
Whilst planning permission is not required in respect of the above the carrying out of such works can give rise to an interference with the private rights of adjoining or nearby neighbours including but not limited to interference with rights of light and rights of way.
Interference also commonly occurs as a consequence of large scale developments. Whether works are undertaken by individuals in respect of their private residence or developers in relation to major construction developments the grant of planning permission is (generally) not of itself a defence to interference with a person’s private rights under a nuisance claim.
In each of the above circumstances, remedies may be available to prevent or compensate for the interference.
2. Right of Way
A right of way is an easement that entitles the user/s of a dominant tenement to pass (either by vehicle, on foot or both) along a particular route over land belonging to another for a specific purpose such as to access a particular building or highway. A right of way may be created by way of express grant, necessity or prescription.
The erection of a new fence or building may partially or wholly obstruct a right of way giving rise to a substantial interference with the enjoyment of the easement as reasonably required by the person with the benefit thereof. For there to be an actionable interference it must be demonstrated that the right cannot be substantially and practically exercised as conveniently as before the interference.
Our disputes and litigation solicitors can provide specialist advice as to whether a right of way:-
(i) Exists and if so the nature and extent thereof;
(ii) Is or is likely to become subject to substantial interference;
(iii) Can be enforced together with particulars of the likely remedies available.
3. Right of Light
A right of light is an easement to enjoy natural light that passes over land belonging to someone else that benefits other land by entering through defined apertures in a building such as windows which entitles the beneficiary to sufficient natural light through the aperture to illuminate the room or space behind so that it may be used for its ordinary purpose. Accordingly, the right cannot exist in respect of open land and is not an entitlement to direct sunlight which are common misconceptions.
Again the erection of a new fence or building on neighbouring land may partially or wholly diminish the right of light. The loss of light resulting from an obstruction must amount to a nuisance to constitute an actionable infringement.
Our disputes and litigation solicitors can provide specialist advice as to whether a right of light:-
(i) Has been acquired by any party concerned;
(ii) Has been or can be defeated;
(iii) Has been sufficiently and substantially infringed so as to constitute a nuisance;
(iv) Can be enforced together with particulars of the likely remedies available.
4. Party Wall Act
If the works to be carried out fall within the ambit of the Party Wall etc. Act 1996 (“the Act”) for example if a new party wall is to be built and/or excavation will be required within 3 metres (or in some instances 6 metres) of an adjoining owner’s buildings as part of an extension the constructing party must serve notice in accordance with Act and comply with the appropriate procedure regardless of whether or not planning permission is required or granted.
The Act sets out various rights and obligations of building and adjoining property owners together with a procedure for resolving disputes relating to concerns in respect of damage to adjoining property which may be occasioned by the proposed works and compensation in relation thereto. Notably the Act provides that “Nothing in this Act shall (a)authorise any interference with an easement of light or other easements in or relating to a party wall”.
The recipient of a notice cannot use the Act to stop works from being undertaken. Once a building owner has complied with the notice procedure (as necessary) the will have the right to enter upon the adjoining owner’s land to carry out the works. The works must be commenced within 12 months of the date on which notice is given failing which the building owner will lose the rights to which the notice relates.
Our disputes and litigation solicitors can provide specialist advice in relation to:-
(i) Whether the Act applies in respect of any proposed building works and any failure to effectively invoke the Act;
(ii) Preparing or responding to notices served under the Act;
(iii) Complying with the dispute procedure (if applicable);
(iv) Appealing an award made under the Act to the County Court;
5. Adverse Possession
In the context of boundary disputes a disputing party may have a claim for adverse possession. Different conditions will apply depending on whether or not land which falls outside an owner’s paper title had been (and remains) in their adverse possession for a period of at least 12 years prior to October 2003. If not a claim must be founded on a period of 10 years’ adverse possession commencing after October 1991 where the following can be shown:-
(i) Factual possession without the owner’s consent signifying an appropriate degree of physical control;
(ii) Intention to possess;
(iii) It would be unconscionable because of an equity by estoppel for the registered proprietor to seek to dispossess the controlling party; and,
(iv) The controlling party reasonably believed that the disputed land belonged to them.
6. Specialist Advice and Assistance
Direct resolution of boundary disputes can often be hindered by unrelated conflicts between parties. Whilst legal proceedings are unavoidable in exceptional circumstances the involvement of solicitors can serve to focus the parties’ minds on the real issues and legal position at hand and facilitate satisfactory resolution of the dispute at an early stage without lengthy and costly proceedings with a view to preserving ongoing relationships between neighbours or protecting corporate reputation where possible. In the first instance, our firm will always seek to resolve a boundary and/or easement dispute by agreement through engaging in forthright discussions, negotiations and alternative dispute resolution if necessary.
If an amicable resolution cannot be reached by agreement our disputes and litigation solicitors can provide you with specialist knowledge, advice and services in relation to, inter alia, proceedings for compensation and injunctive claims.
Get more advice from our expert solicitors
Accordingly, if you are an individual or developer facing issues in relation to boundary disputes or rights of way etc. please contact our Disputes and Litigation Department on our mobile-friendly number 033 33 22 1000 or 0800 987 8156 to arrange a meeting and speak to a solicitor.