The fence of our neighbour is invading onto our property. The title deeds plan has not been checked and the fence is at least one metre above the area where I should have a boundary with my neighbour next door.
Our garden is now at least one metre smaller than it should. This is an enormous loss in territory considering that the garden measures five meters wide. We don’t know when the fence was put up, but it was there before we moved in.
Our neighbour has been informed of the problem but he and his spouse insist that it is as it was before they moved in. They refuse to remove it.
Neighbourly divisions: If your garden has lost one sixth of its width, it could be worth contesting – though the people living next door are unlikely to thank you for it
Which legal rights do we have in such a situation? What are our legal rights in this situation?
Would we be within our right to have a fencer move the fence to its correct position without our neighbour’s consent – neither he or his wife work from home so this wouldn’t be problematic to achieve. Via email
Ed Magnus, This is Money answersProperty borders seem to foster conflict between people who live together.
If the issue cannot be resolved diplomatically, then you should probably prepare for an uncomfortable relationship with your neighbor.
Perhaps you could consider Winston Churchill’s view, which once stated: “You have enemies.” Good. It means you stood up for something once in your lifetime.
It’s worth standing up for your garden if you have lost 66% of it width. Even worse, neighbours are known to be more aggressive.
Let’s be honest: A reader thinks the fence that was built before the homeowner moved in was at least one metre above the boundaries.
Before you involve any lawyers, however, make certain that two things are clear: the fence is not in the correct place; and your neighbour cannot be persuaded to change their minds through friendly discussion.
Although you claim to have reviewed the title plan, it is not likely that this will provide conclusive evidence. Most title plans do not show precise boundaries.
Re-read any legal documents you were given during purchase. You may need to address the issue of fence position during legal queries.
You might find out that an agreement for the sale of a parcel of land was reached between former neighbors.
You don’t want the possibility of losing thousands in legal fees.
If you are the rightful owner of this land, it will not only provide additional garden space but could also add value. It might be worth exploring other options.
The last problem in this case is that neither you nor your neighbor seem to have any idea when it was built.
This can be problematic depending on the length of time your neighbor has been living in their home.
If you have been in adverse possession for 10 years, your neighbor may apply to become the property owner. This is also known as a’squatters right’.
The claim could be made on the ground that the person has been in adverse possession adjacent to the property and have mistakenly believed they are its owner.
Our reader asked us to speak with them in order to assist him. Hollie DeaconWright Hassall associate, Associate Property Litigation Team, Winnie MbieliRHW solicitors – a lawyer
Is it possible for him to move the fence and not ask?
Winnie Mbieli replies: Do not under any circumstances move the fence without your neighbour’s consent or a court order.
It will, at the very least, inflame things. At worst it can cause criminal damage.
Is it possible that the fence could be maintained by the reader?
Hollie Deacon replies:A solicitor may not always be available to advise on how to remove a fence from a property and place it back where the owner considers the appropriate boundary.
However, if this is something you are determined to do, then we advise you to be alert of the risk financial of getting on the other end of any injunction proceedings.
The reader could be on the receiving end a costly costs order. Legal action may follow to correct the demarcation. These are not cheap.
How would you feel if your fence was built more than 10 years ago.
Winnie Mbieli replies:If the fence existed before you moved in, or that of your neighbor, it might be worth speaking with them to find out how long they have been there.
You can be sued by your neighbor if the boundary has not been changed for 10 years. This is called adverse possession.
Is it possible that their neighbor could have squatters rights?
Hollie Deacon replies: Without becoming too technical as to all of the exact requirements to claim adverse possession, it is absolutely necessary as a start for a ‘squatter’ to have been in possession for more than 10 years.
They will require evidence from their predecessors if they don’t have the right to claim adverse possession if they haven’t been in the house for that time.
A boundary dispute can be complicated by adverse possession. It is possible that one neighbor has acquired land that is adjacent to the wrong boundary.
Use diplomacy to avoid confrontation. You might be able to persuade your neighbour to change their mind by having a friendly discussion with them and sharing some cake.
A neighbour who can demonstrate that they have a’reasonable belief that’ the land belongs to them may be entitled to a claim of adverse possession.
While “reasonable belief” may not be straightforward, the mere fact that a neighbor might challenge the boundary’s position will not negate an adverse possession claim.
It is not unusual for adverse possession to be dealt with simultaneously with a decision on a boundary issue by a judge.
Is it possible to use his title plan for evidence?
Hollie Deacon replies:Title plans are not always accurate and can’t be trusted to accurately show your boundaries.
This does not mean that the reader cannot be trusted. It is best to have a boundary inspector conduct a site survey.
Then, they will return to their offices and review historical ordnance surveys maps and plans. Finally, they’ll do a topographical map before delineating the boundaries.
You have the option to instruct a surveyor together with your neighbor or individually. After you receive the report you can show it to your neighbor to offer them a ‘determined border agreement’.
The Land Registry can record this. This will allow you to update your title plan.
Alternativly, you might offer to go along with your neighbour for a process of alternative dispute resolution. This is often a better option than taking it to court and can be significantly quicker and cheaper.
Royal Institution of Chartered Surveyors has a mediation service that resolves boundary disputes. This involves a RICS third party surveyor acting as a mediator between two parties during a single-day meeting.
It is possible to split the costs between both parties. The cost of attending court can be significantly lower than that of going to court. It is important that both sides are satisfied with the outcome of this one-day hearing.
Is it possible for his neighbour to refuse?
Hollie Deacon replies:You can ask a solicitor for assistance to send a letter to your neighbor to start the boundary dispute protocol. This is the pre-action phase of litigation.
An initial letter will be sent to the neighbour describing your position. After the initial letter to your neighbour, the solicitor will request information exchange to narrow down issues. Then both parties can ask an independent surveyor for a report.
The Court may be requested to make a ruling if the parties cannot reach an agreement at this point.
These circumstances require that the Court determine the historic boundary at the earliest possible conveyance. It is this line which will be used to divide the land.
For this purpose, experts from the boundary surveying industry will be able to provide evidence.
If the boundary is moved for an extended period, as previously stated, it can lead to claims in adverse possession.
Do you have any final thoughts?
Winnie Mbieli replies:In this case, remember that you are living next to your neighbor and they are your neighbours.
Try to settle the issue as peacefully as possible. Legal action should be considered last, as this could lead to costly and stressful results.
However, your house is most likely your greatest asset. Protect it.
