Have I stolen 2 inches of my neighbors garden?

Re: Have I stolen 2 inches of my neighbors garden?

Postby MacadamB53 » Tue Jan 19, 2016 12:20 pm

Hi Loo,

did you buy from Wimpey in 1991?

Kind regards, Mac
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Re: Have I stolen 2 inches of my neighbors garden?

Postby Loo » Tue Jan 19, 2016 2:55 pm

Hi Mac,

No, we didn't buy it directly from Wimpey. We are the second owners and have been here about 10 years.

They have sent us a copy of our deeds and highlighted a section which reads:
3. The Purchaser covenants with the company and also as a separate covenant with every other person who is the registered proprietor of any part of the estate (for the benefit of the Estate and each and every part thereof and with the intention of binding the property) in the terms specified in the Third Schedule.

The third schedule is highlighted
4. To maintain, repair and renew the fence wall or other means of enclosure on any side of the property marked 'T' within the boundary on the plan and any fence wall or other means of enclosure within the property provided that......

Loo
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Re: Have I stolen 2 inches of my neighbors garden?

Postby Collaborate » Tue Jan 19, 2016 3:09 pm

As I think you've gathered by now, positive covenants (i.e. to maintain a boundary feature) do not run with the land, which means that your neighbour can only enforce the covenant as against the original purchaser. It is likely that in your deed of transfer when you bought the property that you agreed to indemnify your predecessor in title in the even of you breaching that covenant, but they'd have to find them and sue them first, and over such a trifle as this I'd be surprised if they could be bothered.

Assuming you also own the boundary fence, the extent of your land is the outside face of your boundary fence. If there is a gap between that fence and the one your neighbour erected then they will own the land in between.

There is no duty upon you to remove any plants or root systems that might have encroached beyond your boundary. I suggest you say this in your reply. Also point out that you personally are not bound by the positive covenant, so refuse to reinstate the fence as well if that is what you choose.
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Re: Have I stolen 2 inches of my neighbors garden?

Postby Loo » Tue Jan 19, 2016 3:39 pm

The previous owner was my problem neighbour's Sister. They both purchased houses with gardens that backed onto each other. They even had a little gate within boundary fence so that they could visit each other!

Within our land registry document there is a schedule of restrictive covenants which I am struggling to read or understand. I cannot see anything about boundary lines or fences in this section but am still concerned.

As I have installed a 1 foot high picket fence in place of the 6 foot wooden fence, can i class this as conforming to the covenant?

Kind regards Loo
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Re: Have I stolen 2 inches of my neighbors garden?

Postby MacadamB53 » Tue Jan 19, 2016 4:04 pm

Hi Loo,

that covenant is an agreement between the parties involved and does not pass with the land when the original party sells on.

which means any action to be taken is with the original party - your predecessor - not you.

their solicitor ought to know as much - a bit naughty of them to try and bluff you into submission (a common tactic though).

If necessary our client is prepared to engage in formal ADR by way of mediation.
If such an agreement is not forthcoming by return then the next letter will be a formal letter of a claim prior to commencement of court proceedings for an injunction, damages and costs.


what this actually means is "if you don't do what our client demands they might ask you to take part in an process known as 'mediation' as a way forward".

this is a completely voluntary and confidential form of Alternative Dispute Resolution (ADR).
the parties concerned choose an independent, impartial person to help them reach a solution that's acceptable to everyone.
the 'mediator' talks to both sides separately or together.
they do not make judgments or decide the outcome of the dispute.
they ask questions that help to uncover underlying problems, assist the parties to understand the issues and
help them to clarify the options for resolving their difference or dispute.

the bit about commencement of court proceedings for an injunction, damage and costs is hot air tacked on IMHO - the full sentence seems deliberately ambiguous to give the recipient the impression the next letter is the start of court action.

to answer your questions:

1. you do not need to erect a fence
2. a row of plants can be considered a boundary feature (albeit a very poor one)
3. I wouldn't send the photo - just state, as you have here, that although you accept that their client did erect a fence along the mutual boundary in such a way that it left a sliver of their land beyond their fence, you have a photograph of the location when both fences were still standing which clearly shows this sliver to be no more than 6cms.

Kind regards, Mac
edit: As I have installed a 1 foot high picket fence in place of the 6 foot wooden fence, can i class this as conforming to the covenant? yes, but you don't need to conform to it
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Re: Have I stolen 2 inches of my neighbors garden?

Postby Loo » Tue Jan 19, 2016 4:40 pm

Thank you so much :)

I don't think this women is ever going to stop. She is retired, single, ex army. Too much time on her hands and seems to focus on us. I think there is something wrong with her.
I'm not sure what to do if she continues. I sort of hoped she would take us to court, as at least that would be an end to it.
I hope not to be back on here next month but have a feeling there will be a new problem to ask about.

Thanks again for taking the time to respond.

Loo
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Re: Have I stolen 2 inches of my neighbors garden?

Postby COGGY » Tue Jan 19, 2016 4:45 pm

The fact that you believe she will present a new problem really says it all. You have not committed any crime, you are allowed to grow bamboo if you wish. Best thing is to ignore this neighbour. When she does not get a response she will likely pick on someone else. Enjoy your garden.
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Re: Have I stolen 2 inches of my neighbors garden?

Postby Loo » Wed Mar 23, 2016 5:48 pm

And so it continues.....
Another solicitor letter which states

We have made enquiries with the land registry and have obtained the relevant documentation from them relating to your property which confirms that you are bound by this convenant.
Our client has instructed a chartered surveyor to examine the position of our clients trellis and confirms there is a clear gap of 110mm between the trellis and your fence post.
The surveyor has confirmed that within the gap your plants have encroached upon the land owned by our client.

We request that you Reinstate the boundary fence in its original position within 2 months of the date of this letter. The boundary fence should comply with planning requirements ie no higher than two metres including trellis.
They again ask me to remove all plants which have encroached onto her land.


if I comply and confirm in writing within 14 days they will not take further action. If I fail to respond they will advise our client to commence injunctive proceedings which will include a claim for costs and damages.

Any thoughts on this one? it doesn't seem as aggressive as the previous letters but that worries me!
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Re: Have I stolen 2 inches of my neighbors garden?

Postby Collaborate » Wed Mar 23, 2016 6:03 pm

I suggest the following reply:

As you are aware, the covenant your client wishes to enforce is a positive covenant. You are I am sure also aware that such a covenant does not bind subsequent purchasers of the land.

Although I am not obliged to maintain a boundary feature, I have erected a picket fence where the original fence stood. I attach evidence of the original position of the fence - the gap between the original fence and your client's trellis being 6cm.

I am not responsible for removal of any plants that choose to grow beyond the boundary, which is the face of the picket fence facing your client's property.
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Re: Have I stolen 2 inches of my neighbors garden?

Postby MacadamB53 » Wed Mar 23, 2016 6:34 pm

Hi Loo,

If I fail to respond they will advise our client to commence injunctive proceedings which will include a claim for costs and damages.

is this true, or have they used suggestive language to help you arrive at this conclusion of your own accord? can we see the wording please?

Kind regards, Mac
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Re: Have I stolen 2 inches of my neighbors garden?

Postby Loo » Wed Mar 23, 2016 7:52 pm

Word for word ....

RESOLVING THIS DISPUTE

We therefore again request that you:
1. Remove all your plants which are growing and have encroached on the strip of land which belongs to our client
2, Reinstate the boundary fence in its original position at your cost within two months of the date of this letter. Any dispute as to the position of the boundary fence has been resolved by our client surveyor. The boundary fence should comply with planning requirements ie no higher than two metres including any trellis.

On the basis that you comply with the above then our client will not take any further action against you. We await your response within 14 days from the date of this letter failing which we will have no option to advise our client to commence injunctive proceedings against you which will additionally include a claim against you for costs and damages.

We strongly suggest you obtain independent legal advice.


They haven't sent me any documents or letters from the surveyor.
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Re: Have I stolen 2 inches of my neighbors garden?

Postby mr sheen » Wed Mar 23, 2016 8:45 pm

The onus is on them to prove their case and provide the evidence they are relying upon to prove it. Therefore all you have to do is reply and ask for the evidence they are relying upon. This is a long way from court yet! They have to follow the protocols and should therefore provide evidence, correspond with you with a view to resolving the dispute and ultimately agree to mediation....until they provide a 'letter before court' and particulars of claim, you do not have to divulge the full details of your defence to the action.
Stalling but being seen to be reasonable happens all the time and if they really do have good evidence they will issue proceedings but often the issue just fizzles out as it costs them increasing solicitors costs. Also they should not tell you to seek advice, that is your prerogative to take or not to take. If they don't want to give up the evidence, they are not working to resolve the matter and not working in the spirit of the CPRules.

My reply would keep my cards close to my chest, but dispute the claims, and try to get them to reveal more and request more info along the lines.....

We acknowledge your letter dated....xyz.
We dispute your assertion that we are bound by positive covenants.
We also dispute your clients claim about the land.
However, if you would forward copies of the evidence your client is relying upon to support her claim, along with the Surveyors report, we will carefully consider them and then respond with further details of our position.
It is our intention to abide by the spirit and protocols of the Civil Procedure Rules with a view to resolving this matter quickly and amicably and assume that you will do likewise.
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Re: Have I stolen 2 inches of my neighbors garden?

Postby MacadamB53 » Wed Mar 23, 2016 8:54 pm

Hi Loo,

from the previous letter:

"If such an agreement is not forthcoming by return then the next letter will be a formal letter of a claim prior to commencement of court proceedings for an injunction, damages and costs."

from the latest letter:

"We await your response within 14 days from the date of this letter failing which we will have no option to advise our client to commence injunctive proceedings against you which will additionally include a claim against you for costs and damages."

both these lines are just hot air spouted in the vain hope they contain enough of a suggestive threat that you take action.

I'd be tempted to start corresponding with the sols about every little thing - each letter they send will be added to her bill.
start off by asking for a copy of the wording they have identified in the register which shows you to be bound by the covenant.
make sure to reiterate your position in every letter though - you will not be erecting a fence and their client is free to exercise her common law rights and remove any plants she doesn't want from her own land.

Kind regards, Mac
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Re: Have I stolen 2 inches of my neighbors garden?

Postby Loo » Wed Mar 23, 2016 9:09 pm

Thanks again for the replies, I really appreciated you all taking the time to respond.
I will write back to the solicitors and see you back here in 2 months as it seems to be the pattern. :wink:
Loo
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Re: Have I stolen 2 inches of my neighbors garden?

Postby snyggapa » Sun Mar 27, 2016 10:57 pm

Here's a crazy-land suggestion but depends on what you want out of this. My personal suggestion is an easy life and make the woman go away and bother someone else, hence:

How hard would it be to cut back any plant growth that could be over "her land" - would it take you an hour?

You already erected a "comedy sized" fence (this part amuses me greatly)

Hence, cut back the growth, write a reply similar to:

Thank you for your letter dated blah. Although removing plant growth from plants on my property that extend over my boundary is not my legal responsibility but that of your client, in the interest of good neighbourly cooperation, I have cut back the growth as requested.

Additionally, and although I believe an obligation made upon the original purchaser is not enforceable upon me as a subsequent owner, but as an a gesture of goodwill I have installed a small picked fence on the original boundary line which I believe is not disputed that is my property.

I trust that this satisfactorily resolves the matter and if I do not hear anything to the contrary within the expiration of (28 days) I shall consider this matter closed

Love and kisses

Loo
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