Neighbour Disputes – FAQs
When Jackie Trent wrote the theme song to the Australian soap ‘Neighbours’ she obviously hadn’t spoken to a property litigation solicitor and while I certainly agree with Ms Trent that everybody does indeed need good neighbours and that those neighbours could very well become good friends this, regrettably, is not always the case. Neighbour disputes can become very contentious with neighbours, at times, arguing over a strip of land for years with legal costs far exceeding the actual value of the ‘disputed’ land.
Communication is the often the key to resolving neighbour disputes, unless parties feel that they can’t talk to their neighbour, parties should always first try to engage with their neighbour before escalating matters. I have answered common questions relating to neighbour disputes that have crossed my desk over the years.
Q Are there any restrictions to the height of the fence I can put up on my boundary?
First check the deeds to the property as there could be covenants contained therein restricting the height of fences. In general, however, fences or walls adjacent to a road, path or pavement require permission from the local authority if they are to be more than 1m high whereas permission is only required for fences elsewhere in relation to the property where they are to be more than 2m.
Q How do I work out who owns a boundary?
There are certain assumptions that are made where the title deeds and title plans are of no assistance:
1. If it’s a fence, then usually the back of the fence faces the owner. The ‘back’ is the side with the posts.
2. If it’s a hedge and ditch, then these belong to the land on the hedge side – i.e. the far side of the ditch is the boundary.
3. If this doesn’t help, ‘acts of ownership’ i.e. If you or your neighbour has assumed responsibility for the fence, then you or they remain legally responsible for it. If it has been jointly maintained by you and your neighbour (or not as the case may be) it may be regarded as a party fence and you will both be responsible for it.
Q Is my neighbour obliged to fix his fence when it has collapsed?
The title deeds may contain a covenant requiring him to maintain the fence, however, in general, there is no legal requirement to do so. Your neighbour could however still be liable for any damage or injury caused by the fence. If you are certain that the ownership of the fence is not disputed, and the fence has fallen onto your land then you can carefully place the fallen fence on his land and advise him that you have done so.
Q Does my neighbour have to keep his hedges neat and tidy
There is unfortunately no general duty on your neighbour to maintain his hedges. The title deeds may contain covenants in relation to maintenance of the hedges and, possibly, prohibit their removal without permission. The hedges however are not permitted to trespass on your land and should not block pavements or footpaths or obscure the view of motorists.
Q My neighbour is refusing me access to his land to fix my fence, is there anything that I can do about it?
It is important for you to remember you have no automatic right to access and to do so without the permission of your neighbour amounts to a trespass on his land. If he continues to refuse, you could apply for a Court Order to enter your neighbour’s garden under the Access to Neighbouring Land Act 1992. You must:
(a) demonstrate that the work is necessary;
(b) is difficult or impossible to undertake without the access; and
(c) would not unduly inconvenience the neighbour.
You also be required to make good any damage you cause and may even have to pay a small amount of compensation for the access.
Q Can I trim my neighbours overhanging hedge?
Generally, yes but you can only trim back an overhanging branch to the boundary and not beyond it. If you trim the hedge passed the boundary line, then this amounts to a trespass on your neighbour’s land. It is also important to remember that any branch trimmings remain your neighbour’s property and you must offer them back.
Q My neighbours hedge is very tall, can I force him to trim it?
No, you can’t force him to trim it, but tall hedges are covered by regulations under the Anti-social Behaviour Act 2003 and you should as such contact your local authority and ask that they intervene. In short, the local authority will intervene, for a fee, where an evergreen or semi-evergreen hedge (deciduous hedges are exempt) of more than two trees or shrubs is over 2m high, acts as a barrier to light or access, and adversely affects the reasonable enjoyment of your domestic property.
The authority will assess the hedge and determine whether it affects your reasonable enjoyment of your property. It is important to understand that the local authority may decide not to serve any notice on your neighbour to reduce the height of the hedge, even if it is far greater in height than 2m.
If the local authority determines that service of a notice is necessary then is can require your neighbour to trim the hedge, though it can only require that he reduce it to 2m.
If your neighbour does not appeal the notice and fails to reduce the height as directed then the local authority can seek to enforce the notice through the Magistrates Courts, which can fine him up to, currently, £1,000. The Court can also order that the work be carried out by a certain date and if it is not, then your neighbour would be guilty of another offence carrying a £1,000 maximum fine, with the power to levy a daily fine on neighbour for every day that he fails to carry out the work.
Q I have a dispute with my neighbour about the boundary line, what can I do?
The most sensible and cost-effective way of dealing with the matter is to try to reach an amicable resolution with your neighbour. If this is not possible then it will be necessary to instruct a Chartered Surveyor (‘surveyor’) with experience in determining boundary disputes.
The surveyor will examine your title deeds and plan with a view to determining the boundary. Physical evidence on the site may also be of assistance. If your surveyor determines the boundary and your neighbour is then in agreement it would be a good idea to enter into a boundary agreement to which will need to be attached a detailed plan drawn up by the surveyor. The agreement should then be registered with H. M. Land Registry. If it is not possible to determine the boundary with the deeds and plan your surveyor may need to refer to Ordnance Survey Maps, photographs and aerial photographs. If your neighbour continues to dispute the boundary line it may be necessary to initiate Court proceedings and for the Court to determine the boundary line.
Q My neighbour is building an extension against the boundary of his property and I fear this will affect the amount of natural light entering my living room, what can I do?
It will first be important to determine whether you have a right to light. A right of light is a type of easement and this can be obtained in several ways including express or implied grant, by statute or under common law.
It is a right which allows you to receive light through windows, skylights and glass roofs, with the light passing across your neighbour’s land.
If you have a right to light you can generally act against your neighbour if his extension significantly obstructs the light. It is important also to refer to the planning documentation lodged on the relevant local authority planning portals as this will usually include an assessment dealing with the issue of daylight.
A right of light entitles you to receive enough natural light to allow a room to be used for its normal or ordinary purpose which means the light level that you have a right to will be different depending on the room in question. There are some standard tests that can be applied to determine what is sufficient for an adequately lit room. Though criticised the current standard test, the Waldram’s test, stipulates that the rule of thumb is that at least 50% of the room should have one lumen of light (equivalent to the light given off by one candle) per square foot. It is important you appreciate the right only entitles you to a sufficient level of light. If you have sufficient light, your right can be determined not have been breached even in situations where there has been a significant decrease in light. It would be advisable to instruct a surveyor with experience in dealing with right to light disputes to carry out an assessment as to whether there is sufficient natural light.
Should it be determined that there has been a right of light infringement then you can apply for an injunction against your neighbour. This application may be made before the extension is completed or it may be after completion, for an order that the extension be demolished or cut back to prevent the interference. The Court also has a discretion to award damages in lieu of an injunction.
Q My neighbour has recently erected a fence and gate, which is locked, over a pathway that I have used for many years to access my allotment, can he do this?
The answer is possibly. You will need to consider whether you have and express or implied easement or possibly one acquired by statute or under common law, a so-called ‘Right of Way’
An easement is a right to cross or otherwise use someone else’s land for a specified purpose. (e.g. a landowner may enjoy the right of way over the land of another to access their property)
Easements may be created in several ways: –
• An express grant– An express right of way may be granted by a deed. The deed should indicate which property has the benefit of the right of way and which property must suffer the burden of that right. An express right of way must be created in writing, it must include all the terms and be signed by the parties.
• Necessity– a plot of land has a right of way of necessity over a road, track or path leading to it if that route is the only means of access between the public highway and that area.
• Prescription– A landowner must use the relevant parcel of land (e.g. using the path over the neighbour’s land) continuously, uninterrupted, openly and without the landowner’s permission for a period of at least twenty years.
If you can establish that you have an easement over your neighbour’s land, then he is not entitled to interfere with you exercising your right. Subject to the specific wording of an express grant (if any), your neighbour will be entitled to erect a fence and gate on his land and even keep it locked on condition that he provides you with a key.
Q I recently bought a house. My neighbour has an unlimited right of way over my property and uses it several times a day for no apparent reason and sometimes stops and wants to talk to me. I feel harassed by him and avoid using my garden as a result; can I stop him using the right of way?
No, you can’t. if the express right is granted so that the dominant tenement has unlimited right of way over the servient tenement then he is entitled to use the right of way for any reason whatsoever and pass over the right of way as often as he likes.
He is however not entitled to stop along the right of way and talk to you if you do not want him to. Talk to your neighbour he might not realise that he is making you feel harassed and causing a nuisance. If, after you have spoken to him, he persists to stop along the right of way and try to talk to you then you will need to explain to him that you understand that he has an unlimited right of way but that the right does not entitle him to stop along the right of way and engage with you.
If he continues to stop along the right of way and continues trying to engage with you then it may be possible to approach the Court for relief seeking an order preventing the ‘unlawful’ use i.e. stopping him from using the right of way in such a way that it is causing you a private nuisance but without affecting the proper exercise of the right of way.
Q My neighbour plays loud music at all hours what can I do?
The first thing you should try to do is talk to your neighbour if that is at all possible. If you are unable to resolve the dispute by talking to your neighbour or are simply too afraid and unable to talk to them, then it would be advisable to complain about the noise to the council. In fact, you can ask your local authority for help if the neighbour dispute involves any activity that is damaging to health or a nuisance. This is known as a Statutory Nuisance.
This could include: –
• noise (including loud music and barking dogs)
• dust, steam, smell or insects from business premises
• smoke, fumes or gases
• a build-up of rubbish that could harm health
Your local authority has a duty to investigate any Statutory Nuisance. If the council agrees your neighbour is causing a statutory noise nuisance they must issue an abatement notice. This notice will let your neighbour know that they must stop making a noise nuisance or else face further legal action.
If your local authority does not consider the nuisance is such that it constitutes a Statutory Nuisance, then you may be entitled to seek the assistance of the Court based on private nuisance. This should always be used as a last resort and can be an expensive task. It is always advisable to seek independent legal advice.
Associate Solicitor, rhw Solicitors LLP
If you are experiencing difficulties with your neighbour and want to discuss your options, then contact Darryn Harris or Daniel Crate at rhw Solicitors in Guildford on 01483 302 000 or email@example.com
rhw offer a one to one, £100 plus VAT fixed fee meeting, for up to an hour in length. This allows us to understand your concerns more fully and gives you peace of mind over the cost.
Disclaimer: The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute, legal advice. We cannot accept responsibility for any loss because of acts or omissions taken in respect of this article. Please contact us for the latest legal position.