Types of neighbour dispute
These are often the most complicated disputes. The first key point to remember is the Land Registry plan does not determine your boundary. It is only a general indication of the boundary (known as the general boundaries rule). Any report or letter that seeks to rely on the Land Registry plan is a bit of a ‘chocolate fireguard’. Instead, you need to rely on the deed where your land was first split off from the land around it. So, on an estate of houses, this will often be the first transfer around the time the house was built, when it was first divided from the other building plots. On older property the deed could be long ago, the more original copy of that deed, and the more detailed the attached plan, the better.
If you can’t find the deed at all it may be difficult to win a case. You will need to look at the deed to see how the land is described - is there a very clear description that can be relied upon. Probably not as most deeds refer to a plan.
They will usually say one of two things:
- The property more particularly delineated on the plan attached - this means the plan should define the boundary. If there is a conflict with the description in the deed, the plan is relied on.
- The property shown for identification purposes only on the plan attached - this is the opposite situation - the deed description defines the land. If there is a conflict with the plan, then the description is relied on.
Sometimes both of these phrases are used together i.e., the land more particularly delineated shown for identification purposes only.
In any of these three situations, the court will look for clear evidence of what was intended at the time of the deed. If the description is not clear, and the plan is clear, then the plan will probably be relied upon, even if it is said to be “for identification only”. In fact, the clearer the plan, the more likely it will be relied on. However, many of those plans were drawn very poorly.
So, what happens then?
If the deed is unclear, the court will look at other evidence around the time of the transfer to determine the boundary. This may be where the other evidence you have gathered comes into play (see keep your evidence above). Increasingly, Judges will come and look at a site at some point in a trial. If they see large physical structures that look long standing, then they may reach a conclusion that is where the boundary has always been. You may need to gather evidence to show that those features are recent, or wrongly located. If you can gather the evidence listed above (see “Evidence”) then it may assist your case. Please remember that witness evidence can be unreliable and whilst previous owners can be crucial to winning your case, they can also destroy it with a careless word or phrase.
Access/rights of way
These are essentially rights to cross other people’s land. They are often called easements. The most common ones are:
- Access to walk or drive to your property
- Drains passing from your house under other land and then into the drainage system/to a septic tank
- Utilities that pass under other land to your house - gas, water, electric, telephone
Easements can be attached to a property in several ways:
- Included in writing in a deed when the land is sold
- Given in a separate deed that just deals with that particular easement
- If the easement was used immediately before the land was split off from common ownership
- If the property would be landlocked without the easement
- If the easement has been used for a long time, usually 20 years
Each of these possibilities needs detailed examination by a specialist. There are huge individual textbooks just on this issue of rights of way (see gale on easements for example).
However, to establish that an easement has been used for 20 years, the access must have been used without force, without secrecy and without permission (“nec vi nec claim nec precario”). So, for example, forcing a lock off a gate, in the middle of the night, would not count towards the 20 years use. One common area of dispute is whether someone has gained a right to park by leaving their car in the same spot on someone else’s land for 20 years. Recent cases suggest that this is possible, provided that the other owner doesn’t effectively lose complete ownership of that parking spot. So, parking overnight is more likely to be gained than completely abandoning a vehicle in one place for 20 years.
Blocked rights of way
If an easement is blocked, then you may need to seek a court order. You have to prove the easement is legally in place (see access/rights of way above). You then have to show that there has been a “substantial interference” with your right. So, if a roadway is narrowed but still useable, you may not succeed in court. It has to be a substantial interference not just more difficult to use. Similarly, it may be possible for a landowner to divert the track on their land e.g., to go round an extension. If it is still useable, there may not be a substantial interference. This is decided on a case by case basis, sometimes by looking at the easements on site. Experts may be required to determine whether an easement is still usable.
Nuisance goes beyond damage being caused to your property. It can also be caused when your neighbour uses their property or behaves in a way which has detrimental effect on your property. It does not necessarily have a physical effect - your neighbour may be creating noise, or their use of the land causes odours or vermin for example.
The standard the court will look at is the character of your neighbourhood. If you live next to a factory, it is likely to make more noise than a field of grain, or a field of sheep. So, you should expect more noise and smell in an industrial area.
When there is no physical damage, it can often feel as though nobody else understands just how bad things are for you as a homeowner. However, making people understand just what life is like and how bad conditions at your property are is crucial. Whilst your own account about the nuisance and the effects on you is hugely important, it is only half the picture.
Below is a checklist of the sort of evidence you need to succeed:
Keep a diary
Whilst we are not suggesting you let the dispute take over your life, keep a log of dates and times when the noise, odour etc is present. Note down the weather conditions or anything else which stands down as unusual about the day. These diary sheets can be sent to the local authority as evidence or can be used to back up your own statement. The diary needs to be consistent and regular. A good diary is invaluable evidence as often it is unlikely an opponent will have detailed knowledge of what happened on specific dates to counter you.
Seems obvious? Often clients come to us describing situations which would be far better explained by a photograph. Imagine a judge considering your case just sat in a courtroom. You need to show them what it’s like on the ground and make them understand the layout quickly. Photographs are also essential in showing any changes on site, for example, expansion or other developments, or items being moved around.
Do your research
Always try to establish the history of the sites and properties in question. Sometimes it may be obvious, for example if it is residential property in a street of houses. Sometimes, the history may be less clear, for example agricultural land. It is essential to work out if the land has any planning permissions or specific status of use. We can assist you with this.
Eliminate other possible causes
Sometimes the cause of the nuisance may be obvious – like your neighbour playing loud music into the early hours. But what if the nuisance is odour coming from a nearby farm? You need to be able to isolate that specific farm as the cause and eliminate all other potential sources, for example other farms even if further away, or fields nearby where crops are grown. Identifying the source of the nuisance is crucial if you are to succeed. It is usually a matter for the experts..
Call in the experts
Nuisance claims based on loss of amenity, like noise or odour, can win or lose depending on the quality of expert evidence. Whilst ultimately, it is up to a Judge to decide whether nuisance exists, they will be led by an expert opinion. Selecting an appropriate expert is crucial. We cannot emphasise this enough. It is essential to choose someone with not only the relevant qualifications, but also experience in being an expert witness in litigation. Don’t be fooled by those offering cheaper fees; it is often a false economy meaning you may need to pay for further expert evidence in the future, by when it may be too late. You need someone who knows the court rules and most importantly is prepared to stick by their opinion even when being cross-examined. Stephensons can provide advice about expert evidence drawing on our extensive experience.
... and finally, don’t hang around.
In nuisance cases, it is essential that you act swiftly, as delay is a factor the court looks at when deciding what remedy to award.
A nuisance can be a statutory nuisance which means you can ask your Local Authority to assist. There are provisions under the Environmental Protection Act 1990 enabling a local authority to serve and enforce statutory nuisance abatement notices. A statutory nuisance can be caused by ‘any accumulation or deposit’. The nuisance must either amount to a common law nuisance as above or be prejudicial to health defined as being injurious, or likely to cause injury.
A major cause of a great many minor disputes between neighbour are boundary features of property, like hedges. The right hedge can be a great boundary feature, but the wrong hedge can cause years of problems between neighbours. If a hedge is encroaching onto your property, you should offer your neighbour the opportunity to trim the tree or hedge first. If they don’t respond within a reasonable time, or disagree with you, then you can take sensible action. You are allowed to trim any overhanging hedge if it crosses your boundary, but if the boundary is not clear then allow yourself a margin of error i.e. don’t cut right up to the boundary!
You also shouldn’t cause fatal damage to a tree or shrub. You don’t want to be accused of damaging the hedge beyond the boundary, or being ordered to pay money to your neighbour for the damage caused. Any cuttings should be offered to your neighbour. If they don’t want them then you can dispose of them (preferably using an appropriate recycling service).
However, some hedges simply get out of hand - allowed to grow entirely on your neighbour’s land, but blocking out all your light. In some cases a local authority can help - using their powers in part 8 of the Anti-social Behaviour Act 2003. A local authority will expect you to have tried to resolve any dispute with your neighbour. They will also want you to have done that recently.
You will then need to apply to your council, and pay them a fee. This varies between local authorities, and you can’t get it back usually.
The local authority can help if all of the following are met:
- You must be the owner or occupier of residential property
- The hedge has to be growing on land owned by someone else
- It has to be made up of 2 or more trees or shrubs
- It has to be mostly evergreen or semi-evergreen
- It has to be more than 2 metres tall
- Even though there may be gaps, is the hedge still capable of obstructing light or views
The council will then decide if the hedge is affecting the reasonable enjoyment of your property. They may then force your neighbour to take action. Please note that this is not guaranteed, and that councils make a wide variety of decisions in these situations.
There is a useful leaflet at Gov.UK High Hedges Complaining.
Funnily enough tree roots don’t respect boundaries either. They just grow towards a water source. This can cause problems with walls, foundations, drains, drives or other paved areas. Please beware that some trees are protected by Tree Preservation Orders (TPO).
Any damage to them may be a criminal offence. You should have been informed of any TPOs when you bought the property, or when the local authority granted the TPO. You can check the position with the council. There is an application process with the local authority to deal with a tree affected by a TPO. Speak to your neighbour first to try to resolve the issue amicably; they may be sick of the tree roots as well!
However, if the tree is entirely on your land, it’s your problem - you can sort it out. If it’s on your neighbour’s land, or shared, then you can’t simply cut it down. That would be a trespass and could lead to a damages claim against you. You can seek that your neighbour repairs the damage caused by the tree. This may well lead to their insurers getting involved. Don’t allow them to drag out the claim. They must stick to the same time limits as your neighbour. You will have to prove that the damage is caused by the particular tree.
Your neighbour may claim it is due to other trees on someone else’s land (including yours!). Again, an expert may be required to assist you here as it may be possible to install a root barrier. This will be a solid structure of some kind that prevents the roots encroaching again. The root barrier and any “surgery” to the roots must not destabilise the tree. We have seen cases where storms have caused large trees to fall following alterations to root structure.
Again, you need to be careful to follow expert advice here. Please note that several insurers have signed up to the Domestic Subsidence Tree Root Claims Agreement. This is a voluntary agreement that means the participating insurers won’t sue each other for tree root damage. So, if your house is damaged by roots, your insurer may not seek to recover the cost from your neighbour. This seems to only apply to the first claim. If the neighbour is warned, and fails to control the tree roots, then the Agreement may not apply.
Party Wall Act
The Party Wall Act requires you to serve a notice (PWA notice) if you are doing work on or near a boundary. The precise conditions are laid out in the Act, but essentially apply when:
- You are working on the boundary structure itself
- You need to overhang the boundary in any way
- You are excavating near the boundary
You should choose a specialist surveyor for this process, which aims to resolve these disputes without the need for lawyers. If a PWA notice is served, your neighbour may simply agree the works proposed however they may object and appoint their own surveyor. You must then meet both surveyor’s costs as they aim to agree a solution. If they cannot agree, then a third surveyor may be appointed to resolve the differences and make an award under the Party Wall Act (PWA award). Once a PWA award is in place, it protects you when you do development work. So, if the notice says you are going to knock a wall down, even where it crosses the boundary, then you are ok to do so.
Your opponent is unlikely to be able to challenge this in court, provided you act reasonably and make good any damage in accordance with the PWA award. However, if you go beyond a PWA award, or indeed don’t get one at all, then you may face substantial difficulties. Judges are increasingly willing to order that all work should stop in a case like this. So if the PWA award allows you to knock one wall down, but you demolish another, the court may well stop you doing any building work in the area of the second wall.
Breach of the Party Wall Act doesn’t lead to automatic penalties; but you run the risk of a Judge making an injunction against you to stop building work. You also run the risk of other remedies being sought against you.
So what are you seeking in your case? Judges will sometimes award damages for a neighbour’s actions. However, these are not the sort of cases where huge amounts of money are made. Small boundary issues can be awarded as little as £1.
On a nuisance case, again a Judge may award a very small amount if the damage is minimal.
You may have asked the court to make a declaration such as to the position of a boundary or your rights over neighbouring land.
If you are seeking an injunction at a final hearing then the same conditions apply as with Interim Injunctions, apart from undertakings in damages.
So the court will only grant an injunction if each of the following is met:
- You have a strong case
- Money (damages) would not compensate you adequately
- The balance of convenience is in your favour
- The court concludes that the status quo should not be maintained
Please note the second condition – if the court concludes that money is an adequate remedy, then you may only get a small amount of damages, as opposed to the injunction. If the court concludes that you have partially caused the problem, or been overly aggressive or inappropriate with your neighbour, then it may not grant an injunction. It is a discretionary remedy, giving a Judge a broad range to grant or refuse an order. The saying is that you need to come to court with “clean hands”.
Sadly, obtaining a court order may not bring an end to the case. Your opponent may then refuse to comply. You may need to make a further application to court for a penal notice to be attached to the order. This is a warning that if your opponent fails to comply, they may face penalties which include fines or imprisonment.
Funnily enough, Judges don’t like it when their orders are ignored. If an order with a penal notice is not complied with, then you need to make an application for the penalty to be applied. Ultimately this may lead to a prison sentence for a disobedient opponent. If the court orders your opponent to pay costs or damages, you may again need to force payment from them.
The County court produces a series of leaflets on enforcement of judgments, which are helpful - enforce a Judgment. It may be wise to look at your opponent’s assets before starting the case. This will give you an idea of whether they are worth suing. You may just be throwing good money after bad. This can be undertaken by obtaining a pre-sue report.
Stephensons specialist neighbour disputes solicitors and lawyers have extensive experience in successfully resolving all manner of neighbour disputes. Whether it is regarding boundaries, trees, blocked access or neighbour nuisance we have the experience to amicably resolve what can prove to be an extremely stressful and distressing situation. Our neighbour disputes team are dedicated to finding quick and cost effective solutions to your situation, using alternative dispute resolution such as mediation to avoid court action if possible. Our solicitors recognise the importance of expert evidence and have built up a national network of contacts that can be called upon to help resolve your dispute the quickest and most cost effective manner.
If you have a legal concern we would welcome the opportunity to discuss it with you and provide some advice.