Boundary disputes, nuisance and trespass

One of the most common property disputes involves disagreements relating to the boundary of a property.

We start by checking the title plan deeds and any conveyancing history.

A boundary survey can show where fences and walls actually stand and we might be able to determine who is responsible for their maintenance.

Often, a negotiated boundary agreement or a small adjustment avoids lengthy litigation.

All land in the UK belongs to someone. It therefore follows that if you go on to land without the owner’s permission, you are trespassing unless there is legal right of access for the public, or if you have acquired a legal right to pass over the land to reach some land of your own.

Trespass is actionable and does not always require proof of loss.

We can send a legal letter, seek an injunction to stop the interference, and claim damages where appropriate.

We advise on the risks of any direct enforcement and the lawful steps to follow.

Nuisance covers unreasonable interference with the use and enjoyment of land, for example, persistent noise, smells, objects or water.

Remedies include an injunction to stop the activity and damages for loss suffered.

We assess whether the interference is substantial, unreasonable and ongoing, and whether a practical compromise can be reached.

Adverse possession allows an individual to claim certain rights to a property or land because they have been using it constantly, within certain parameters, for a period of time.

Examples include continuous use of a private road or driveway or a long-term squatter who has been living in a property.

It may be possible, after the relevant time requirement has passed, to apply to the Land Registry for you to become registered as the legal owner.

The rules relating to adverse possession can be complex and there are many ways that a claim can be defeated.

If someone claims ownership through long possession, we review whether their occupation meets the legal test.

We advise on resisting or negotiating a settlement and on whether indemnity insurance or corrective Land Registry applications are appropriate.

There are various mechanisms by which a right of way of easement might exist and there might be limitations attaching to such rights:

• Express agreement

Often, a private right of way is agreed in writing between two parties. This is known as an express agreement and is common where, for example, a parcel of land has been sold and one party needs to cross the other’s land in order to get to theirs.

• Implied Rights

Sometimes a private right of way can be ‘implied’. For example, a landowner may similarly sell a parcel of land, keeping part for their own use without ‘expressly’ stating that the buyer has a right of way to cross the land in order to access theirs, but in such circumstances the law will often assume there is an ‘implied right of way’.

• Acquired right of way

An acquired right of way, also known as ‘claiming a right of way by prescription,’ is a common method of attaining a private right of way and relies upon the length of time that a person has relied upon this access.

Usually, a right of way can be acquired if you can prove that you’ve used a particular route regularly for a period of at least 20 years AND that this access is a benefit to the land you own or rent.

Acquired rights of way cannot be claimed if you have been accessing the route in secret or by using force.

• Extent of a right of way

Not all private rights of way are created equally. The question of whether access is permitted only if you are on foot, whether you can drive a vehicle across the land or even herd cattle across it, will depend either on the written terms of the express agreement or, in the case of an acquired right of way, the type of use that first provided these rights.

The rights of both the landowner and the individual seeking the right of way can become highly emotive and lead to a complex dispute if prompt legal advice is not sought.

If you own a property which has received natural daylight for 20 years or more, then by law, you may have a ‘right to light’. This means that you may be entitled to object to any construction work or other obstruction which will deprive you of this.

Under the Party Wall Act 1996, walls that separate buildings, which are owned by different parties, are subject to a number of regulations.

If you are planning to carry out work on your property, your surveyor may already have assessed the type of building work proposed and will have outlined any conditions attached to it. Nevertheless, seeking expert legal advice is vital to resolve potential disputes that arise from the proposed works.

If you are concerned about proposed building works to a property next door to you, it is important to understand your rights so that you can challenge any proposed work as early as possible.