Boundary Encroachment (Dispute?)

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Boundary Encroachment (Dispute?)

Post by Mikey » Fri May 06, 2005 5:29 pm

Hi Guys.

I have been aware of Garden Law for some time but until now have not had the need to post but I now find myself in desperate need of a little advice on a problem which has recently arisen. As is usually the case a quick scan of other posts reveals similar situations but not exactly the same circumstances, so here goes ...

We live in a semi-detached property with gardens to the front and driveways down each side. When we first moved in, the garden was "open" and both neighbours used to take turns in cutting the grass but unfortunately the open nature of the garden didn't offer either of us
much security or privacy. So shortly before the previous neighbours moved out my wife and I erected a pretty three-foot picket fence between the two houses. Call us young and naive but as the fence-line wasn't ours we felt it appropriate to build the fence into our land by approximately 3 inches so that we could still maintain our fence if the future neighbours wanted to build a similar fence up to the boundary.

The problem now arises that the new neighbours have converted their front garden into a hard-standing parking area. In doing so the builders have installed concrete kerbstones to the edge of the boundary to contain the tarmac but have supported them with sloping concrete "footings" which cross the boundary and stop just at the line of our fence.

I asked the builders to move things back when I discovered this but they refused and said the owner of the house would have to sort it out. The driveway is now finished but we have 3 inches of solid concrete encroaching across the boundary.

Now comes the tricky part: Our neighbours are quite simply bullies and are completely unapproachable. They are quite simply the epitomy of NFH. This is obviously another matter and I have no idea what we have ever done to them, but the mere fact that we exist seems to irritate them beyond belief! So my usual approach of a friendly chat is sadly out of the question.

We have legal cover through our insurance company and I approached our insurers for some advice but as soon as they heard that it concerned the boundary they shut up shop and said they did not get involved in such disputes and would not be able to help me. The only advice they could offer was that if I took it into my own hands and removed the concrete I could be arrested for criminal damage and that because we had built the fence and the location of the boundary is now in dispute it could end up costing us a fortune in litigation.

This we cannot understand. Isn't it obvious in this case where the boundary lies? It is not as though the boundary could be anywhere other than in the middle of the two houses - they aren't huge sprawling properties with irregular boundaries or that we're talking about some arbitrary point in the middle of a field. Why would the boundary be anywhere else? Surely
someone with a tape measure and the ability to divide by 2 should be all that is needed? Obviously the driveway builder had forgotten his calculator that day.

I remember looking at the deeds for our house and the line was smack in the middle of the properties extending straight out toward the pavement and road.

Can anybody suggest a way to proceed?

Thanks in advance.

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Post by nigelrb » Sat May 07, 2005 4:46 pm

Hi. You're really in a bind here 'cause the only way out seems to be via legal recourse.

Firstly, the builder who constructed the parking bay/kerb etc. has an obligation to not transgress into another property. Whilst he can be guided by a fence line, the siting of the fence (as you point out) is not the authority on the alignment of boundary; it should have been established from title deeds. However, there is a defence that a 'true' boundary can 'vary' from the title by up to about 6 - 8 inches, clearly not a good point in your favour.

I would proceed to a higher authority within your insurance company; you are paying a premium for protection of your rights and they're not affording you such protection. Your policy entitles you to representation and assistance.
where various posters have alluded to the merits (or otherwise) of such insurance.
You have done the right thing in trying to first rectify the situation with your neighbour- your two pronged attack should come from both your insurance company and assistance (hopefully) through your local Citizens Advice Bureau. Regards, Nigel

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Post by Danny » Sun May 08, 2005 10:51 pm

If you know the exact postion of the boundary you could maybe add x inches of timber to your excisting fence posts( neighbours side) replace fence/panels. The fence/panels would extend to overhang above the concrete drive, reclaiming your land?. Professional advice should be sought before attempting/carrying this out.

Although 4 years old, you may be interested in reading the following case, which uncannily is very, very similar to yours. Below is a link to the summary of the case which also provides link to the actual case. There are several ways in which to interpretate the actual case and the judges decision. ( lets us know your interpretation ) ... idx=218543
Last edited by Danny on Sat May 21, 2005 7:30 am, edited 2 times in total.

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Post by Mikey » Tue May 10, 2005 5:36 pm

Many thanks to both nigelrb and Danny for your responses.

A very interesting link you kindly provided, Danny. The case is indeed very similar and the term 'de minimis' used in the proceedings is certainly not encouraging.

I agree that in the grand scheme of things (in our case) an area of land 3 to 4 inches by some 18 feet is hardly a matter which I feel courts would particularly relish resolving and if it was out of sight at the end of the garden we would probably just let it go. The added complication is that with the new driveway layout we now have a car parked (headlights first) about 3 feet from our living room window and we really need to replace our fence with something more substantial and thought a wall with a carefully controlled hedge would offer both security and privacy.

The hedge is easily planted but the problem comes about when we want to build the wall. The concrete footings mean we would have to build the wall at the current fence-line (i.e. to the concrete) and since the wall would be a permanent feature we would forever lose the use of that slice of land plus the space taken up by the wall - not to mention the fact that our garden is only small to start with - approx 18 feet x 25 feet {length of garden from house x total length of frontage, half of which is taken up by our own driveway}.

We could as Danny suggests extend our fence posts over the footings but the land would still not be ours to do with as we wished because someone has built on it - Unless we 'incorporated' it into the wall's foundations - but then wouldn't we be liable to prosecution for criminal damage?

We have downloaded our title register and plan from the Land Registry which indeed shows a line (albeit dotted) extending from the exact centre of the two properties. Other properties on the plan either have a solid line or nothing at all but in practice everyone clearly builds to the centre-line.

If we could be sure that the boundary is clear and it is a case of trespass then we believe at this point the legal cover provided by our insurance policy would come into effect. We don't have any awful lot of money and without the cover certainly would not be able to take action costing thousands.

We are now looking to consult a solicitor but in the meantime can anyone determine whether we would have any trouble in proving where the boundary lies?

Thanks in advance.

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Post by Danny » Tue May 10, 2005 6:20 pm

Mikey wrote:We are now looking to consult a solicitor but in the meantime can anyone determine whether we would have any trouble in proving where the boundary lies?
Solicitor should advise you on this. I belive the following. When neighbours cannot agree, the usual way to determining the postion of the boundary, if agreed, be decided by 2 or 3 surveyors. But that won't resolve the trespass.

You get your own surveyor to compile a report as to where he belives the boundary line lies. Based on that report, a decision can be made as to wether trespass has occured, what the likely outcome would be should you pursue a case, injunction, damages,cost's etc. also, you should be aware of the effect to your property by receiving damages in lieu.

I would obtain a surveyors report before seeking solicitors advice. Surveyors and architects can sometimes if asked, suggest ways to resolve the trespass without expensive litigation, also advise as to what outcome to expect if you pursue case. Mentioning that you wish to erect a wall along the boundary, may give rise to an alternative solution.

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boundary encroachment dispute

Post by Sadgardener2 » Sun May 15, 2005 4:53 pm

I have read lots of posts this afternoon and feel so depressed. Where do they come from, all these bullies.

Having been bullied myself, would suggest that you bite the bullet and deal with the problem straight painting the strip of concrete to mark it as yours (as you were about to paint the picket fence anyway and..... whoops). And as you now need a fence, you could get some holes made in this concrete (when your neighbours are out ) and put in your fence posts. They have obviously made a mistake when laying their drive and of course you don't mind, but this is where your fence is going to be. Always be polite, always reply politely in writing, but do not be pushed around!!!! Never react emotionally in front of them and just try to keep cool. Have no doubt that were the situation reversed they would have been out in the street shouting until the contractor removed the wet concrete from every millimetre of their property. Good Luck

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Post by gardenlaw » Sun May 15, 2005 5:53 pm

You cannot rely on the Land Registry plan. It showed a dotted line because there was no permanent feature to point to on the ground.

It sounds simple to measure the exact boundary from outside but be aware of the possibility that the internal, unseen, boundary between the bricks themselves may not match what you think the should. Further are you sure the building is at rightangles to the road to enable a perpendicular projection to be made which is consistent throughout its lenghth and proves you are correct? As you say the de minimus rule may come into play if you go to court.

I do not think the police would be too interested unless they thought there was going to be a breach of the peace. After all you firmly believe it is your land.

I feel your money is better put into a new wall, but chack that your deeds do not say that the front garden is to remain openplan!!!

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Post by Danny » Mon May 16, 2005 4:08 am

gardenlaw wrote:As you say the de minimus rule may come into play if you go to court.
What is the de minimus rule?

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