Boundary Disputes

Rose & Rose

Boundary Dispute Solicitors

Establishing the boundaries and ownership

If a dispute arises between neighbours about the boundary between their properties, it will be necessary to establish who owns the disputed land. The primary evidence will be contained in the legal documents. Clear evidence of this kind is normally conclusive.

However, the boundaries between properties can differ from those described in the title documents or lease in certain circumstances. The most common are where they have been changed by agreement or by encroachment (occupation without permission).

Duty to erect a barrier

Generally, as a property owner you do not have to erect and maintain any type of barrier, for example, a fence, wall, trellis or railing, around your property. Some of the exceptions include where:-

• there is a clause in the title documents or lease

• the property is next to a street and may cause danger

• the land is used for dangerous purposes, for example, storing chemicals

• a barrier is necessary to prevent animals, other than domestic pets, from straying.

Who can use or repair a barrier

In order to decide who can use and repair a barrier, it is first necessary to establish who owns it. The rules for working out ownership are the same as for other boundaries. In other words, the legal documents may specify who owns the fence, or you may have evidence that it belongs to you.

If the barrier belongs to one owner, they can use it as they wish, without the neighbour’s consent, providing it is safe. The neighbour has no rights over the barrier. For example, they could not use it to support trailing plants without the owner’s permission. If a fence is jointly owned, each neighbour can use it for support, provided neither makes it unsafe. Any repairs should be financed jointly.

As a property owner you do not have to repair your barrier unless the title documents or lease contains such obligations. However, if the barrier causes damage or injury, your neighbour could take you to court for compensation.

If as a property owner you have a barrier next to the street, this should be kept in good repair to prevent it becoming a nuisance or danger to people using the street. If a passer-by is injured by the barrier, for example, if it has barbed wire, or falls down on someone in the street, that person can take you to court for compensation.

Planning restrictions on barriers

Planning permission is not generally needed before erecting a fence or wall, provided it is no more than one metre in height if next to a highway, or two metres elsewhere. If you wish to exceed these limits, you will need to get planning permission from the local authority. There are no planning restrictions on the height of hedges.

Trees

Overhanging branches

If a neighbour’s tree hangs over an adjoining property, the tree owner should be asked to trim back the tree. If this is not done, the complainant has the right to trim the tree back to the boundary line (but see Tree preservation orders below) although any branches and/or fruit removed belong to the tree’s owner and should be offered back to the owner or disposed of with the owner’s consent.

An overhanging tree may also be a danger. For example, most parts of a new tree are poisonous. If any damage or injury is caused, the tree owner will be liable to pay compensation if a person affected brings a claim for damages.

Dangerous trees

In England and Wales, local authorities have powers to deal with trees on private property which are on the point of causing damage. A local authority can:-

• make the tree safe, if it is on the point of causing damage and are asked to do so by the owner of the land on which the tree stands. The local authority will recover the costs of doing this from the owner

• make a tree safe on someone else’s land, if asked to do so by a neighbour whose property is in imminent danger from the tree and the owner of the land on which the tree stands is not known

• serve a notice on someone who has a tree which is on the point of causing damage to the property of a neighbour and that neighbour asks the local authority to take action. The owner of the tree must comply with the notice. If they do not, the local authority will do the necessary work and recover the costs from the owner. The owner can appeal to the county court against the notice.

If you want the local authority to take action, you will need to find out which department deals with dangerous trees as this varies from one local authority to another. You can then ask this department to check the condition of the tree.

It is up to the local authority to decide if the tree is on the point of causing damage. If they consider it’s not on the point of causing damage, they don’t have to take any action.

In Northern Ireland, local councils only have powers to make a dangerous tree on private property safe if it is overhanging a public footpath or road. If a dangerous tree is overhanging a neighbour’s property, you will have to try and come to an agreement with the tree’s owner. You could also think about going to mediation or, as a last resort, taking legal action against your neighbour.

Roots

If the roots of a neighbour’s tree spread into a property, they can be removed using the least damaging method available, unless there is a tree preservation order on it – see below. If a neighbour has to enter the tree owner’s property to do this, they must give reasonable notice.

The neighbour may also wish to consult their insurers, if there is a possibility that their property may be damaged by the roots. If the roots have already caused damage, the tree owner is liable to pay compensation but it must be shown that the tree owner knew, or ought to have known, of the danger.

Tree preservation orders

If you wish to prevent a tree being lopped by your neighbour, you could contact the local authority (divisional planning office in Northern Ireland) to see if they will place a tree preservation order on it. All trees in an area designated as a Conservation Area are automatically protected.

Hedges

If a neighbour’s hedge is tall and blocks out light, the person affected by the nuisance can prune the roots or branches. However, no one should attempt to reduce the height of a hedge without obtaining advice from a solicitor. In addition, some hedgerows are protected by law.

In England and Wales you have the right to complain to the local authority if your residential property is affected by a neighbour’s evergreen or semi-evergreen hedge which is more than two metres high. This may result in your neighbour having to reduce the height of their hedge. You must try to resolve the complaint with your neighbour before going to the local authority, and you may be charged a substantial fee before the local authority will consider the complaint. Either you or your neighbour can appeal against the local authority’s decision.

Hedgeline is an organisation which can give advice to victims of hedge nuisance in England and Wales who are members of the organisation.

Please info@roselegal.co.uk info@roselegal.co.uk to discuss the best way forward for you and we will provide you with further and specific advice tailored to your circumstances. 

Our experienced and understanding team are here to help you. We will work with you to ensure the best possible outcome.