Garage Overhang

Garage Overhang

Postby mitzy » Sun Feb 16, 2014 1:56 pm

Hi All

Would greatly appreciate help and advice on garage overhang problem.

I have a small section of garage roof - mainly fascia & guttering - which overhangs a party wall and over my neighbours driveway. They have a car port on their driveway and a small section the roof runs underneath the overhang.

My neighbours have recently sold their house (subject to contract) and I have been asked by the new buyers solicitors (through my neighbours) to provide a letter stating that should the new owners wish to replace the old car port in the future with a new car port they will require the overhang to be removed and I will remove it.

I have lived at my property since Jan 2009 (a repossession). My neighbours have lived at theirs for fifty three years. The guy that built the roof lived here from 1988 - 2008. When I ask my neighbours when the roof was actually built they keep saying that they can't remember - there is no written agreement for the encroachment only a verbal one - he apparently said it would be couple of inches over -it is clearly a lot more than that but at the time they did not do anything about it.

My questions are can solicitors send requests like that? Am I right in thinking if I do remove it to allow work to go ahead I would not be able to put it back there? Can I insist the new neighbours remove it at their cost and make the roof good?

Any help appreciated.
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Re: Garage Overhang

Postby ukmicky » Sun Feb 16, 2014 2:59 pm

nothingtodowithme wrote:hello Mitzy if I were in your position I would ignore the solicitors letter.
The contract for sale is between the neighbour and the buyer; this overhang is obviously a problem for the purchaser hence the letter.


I agree
Advice given is not legally qualified and you are advised to gain a professional opinion
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Re: Garage Overhang

Postby pilman » Tue Feb 18, 2014 12:59 pm

When a situation such as the one described here has existed for over 20 years, then it is likely that the easement to overhang the gutter over the air space belonging to the neighbour has become a legal easement in favour of the property doing the overhanging.

This is because English law recognises what is called "a prescriptive easement" that comes about after 2O years use of land without permission, without using force and openly exercised, knows as "use as of right"

That appears to be the situation if this garage was erected in 1988 and no one has done anything to stop the use of the overhang during that period.

You do not need to respond to the solicitor's letter, but it may be sensible to write back and confirm that the prescriptive easement regarding the overhanging gutter is now a legal benefit for your property and a legal burden on the neighbour's property so that the intended buyer will be aware of that situation.

Such an easement, even if unrecorded is "an overriding legal interest" so making the solicitor aware that you know that this is how the law treats such matters after 20 years use as of right will show that you do not intend to be treated in any way that would be unlawful.

An attempt now to remove your gutter from its overhanging position would be a trespass that will need to be defended through a civil court action where you would need to prove its existence for over 20 years.
All civil legal actions can be costly so it may be politic to make the new potential buyer aware that you know about this potential trespass against your legal interst in the land owned by the neighbour, if he did as the solicitor's letter indicates and tries to remove the gutter fronm over his land.

You are setting out known facts so that the prospective buyer, through their solicitor, will be aware that you will not allow your legal rights to be interfered with, so you need to be aware of what your current legal rights are.
The period of prescription is 20 years, after which time use of another person's land without permission, without force and being an openly exercised use of their land will create a prescriptive easement, such as the right to overhang the air space belonging to the next door property by a gutter attached to a building located on your property.

If you want to do your own research, type in "prescriptive easements " into Google and read some of the many articles on the subject.
Fore warned is fore armed!
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Re: Garage Overhang

Postby MacadamB53 » Tue Feb 18, 2014 2:38 pm

Hi pilman,

Would you endorse my suggestion that the OP take a few photos of the current set up in the event the gutter is removed without permission? Particularly since what was built does not match the plans...

Kind regards, Mac
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Re: Garage Overhang

Postby mitzy » Wed Feb 19, 2014 11:02 am

Thankyou for all the information pilman.

We (my brother is helping me with this) have politely informed the neighbours that I will not be sending a letter via them about the issue of the overhang and if the purchasers solicitor still wants to pursue the matter to write to me direct.

On reading information on 'prescriptive easement' it seems this is what has happened - am now busy gathering all the information together to prove it!
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Re: Garage Overhang

Postby pilman » Wed Feb 19, 2014 1:53 pm

Make sure that you understand that it is up to the person claiming a prescriptive right to prove that there has been 20 years use, as of right.

You mentioned in the first posting that the previous owner was from 1998 to 2008 and you bought the repossessed property in 2009.
Can you prove when the garage was built, as I noted that the neighbours "cannot remember" the date as this is not in their best interest to do so.

Was the garage built after gaining planning permission?
That would establish a date from the council's planning web-site.
If built under permitted development rights did it need building control approval?
Can that date be verified?

Can you contact anyone capable of giving a Statement of Truth that they knew when the garage was built?

I don't want you to think it is easy to prove a prescriptive easement just by saying "It's been there for more than 20 years"
You have to prove it has been there for more than 20 years.

As owner of a repossessed property can you?
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Re: Garage Overhang

Postby celestina » Wed Feb 19, 2014 3:51 pm

Old aerial photo's might show it? Also, as Pilman suggests, the planning application/consent will give you a date, we are using our planning consent to date some photo's. If needed, we will also approach building regs.
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Re: Garage Overhang

Postby arborlad » Wed Dec 13, 2017 1:34 pm

arborlad

smile...it confuses people
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Re: Garage Overhang

Postby jonahinoz » Wed Dec 13, 2017 7:36 pm

When I ask my neighbours when the roof was actually built they keep saying that they can't remember - there is no written agreement for the encroachment only a verbal one - he apparently said it would be couple of inches over -it is clearly a lot more than that but at the time they did not do anything about it.

Hi,

Permission given can be withdrawn, so best not mention permission. On the other hand, if the permission was for a couple inches, and the overhang is appreciably more .... ?

It's probably best if I don't even think about this.

Er ... if the new neighbours do build a new car port, how close to their boundary will they be erecting the supports? I'm guessing that they will not be at the edge of their roof? Does your garage slab sit on the boundary, or if it has foundations, do they cross the boundary? It may be that their roof will under-hang, or over-hang, your garage roof.

Wouldn't be better if they extended your roof up to the side of their house? No need supports for their roof, and maybe they could erect a wall at one end, and a stand alone door at the other end ... or even doors at both ends?

Do you have a dropped kerb ... was it lowered at the same time as the garage was built? Would the Highways Authority have a record of when?

John W
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