Neighbour disputes

Neighbour disputes may not be of high financial value, but they can be among the most acrimonious and difficult to resolve. The Court of Appeal has stressed that professional advisers have a duty to warn their clients at an early stage about the downside of ‘neighbour litigation’ even for a successful party. Apart from significant costs, ongoing relationships will be affected and the litigation may blight the properties and lives of those involved. If at all possible, disagreements about rights of way, boundaries and similar should be settled without resorting to court (Wilkinson v Farmer [2010] All ER (D) 217 (Oct)).

When investigating title or considering replies to enquiries before contract, it is essential to look carefully for any evidence of an existing dispute, or obvious potential cause for dispute.

Boundaries

Land Registry title plans record only the general position of property boundaries. Consequently, in the case of a boundary dispute, it remains necessary to refer back to the deeds or to resort to legal presumptions.

Under Land Registration Act 2002 ('LRA 2002') a squatter may apply to be registered as proprietor after 10 years' adverse possession. That application will be rejected if the registered owner requires it to be dealt with under LRA 2002, Sch 6, para 5, unless the squatter can show:

If a squatter's application is refused, he can make a further application for registration if he remains in adverse possession for a further period of 2 years. That application will succeed unless, during the 2 years since the first application, the 'paper' owner has taken steps to regain possession of the land, or to put in place a lease or licence to permit continued occupation.

LRA 2002 provides for the precise position of a boundary to be determined, either on application by the registered proprietor or, in the case of a transfer or lease of part, by the registrar in respect of any common boundary. Once determined the exact line of the legal boundary will be shown, on a detailed and larger-scale map, as a single line, showing the relationship between it and other features on the plan. If the boundary has been determined in this way, squatters cannot rely on 'reasonable belief' as to its location to support an application for title by adverse possession.

Professional advisers have a duty to warn clients of the potentially catastrophic costs and consequences of boundary disputes. The Court of Appeal has said that advisers should urge their clients to consider alternative dispute resolution procedures following one case in which a dispute over a small strip of land led to a legal bill exceeding £500,000.

Trees and hedges

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:

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.

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. 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.

All trees in an area designated as a Conservation Area are automatically protected. In other areas, Tree Preservation Orders might apply. Regulations in force from 1 October 2008 provide for a standard form of application for local authority consent for cutting down, topping, lopping or uprooting trees covered by a TPO.

In England and Wales complaints can be made to the local authority if residential property is affected by a neighbour’s evergreen or semi-evergreen hedge which is more than two metres high. Neighbours must try to resolve the complaint before going to the local authority. The local authority may charge a substantial fee before considering the complaint. Either neighbour can appeal against the local authority's decision.

Shared access

Disputes over shared access commonly arise:

In any of these circumstances the first step is to check the register or title deeds for evidence of a right of way. If an express right was granted, then check for any limit on its use or extent. If the right of way arose from long use, then check for evidence of the use (both nature and extent) that gave rise to it. The primary remedy for interference with an easement would be an injunction.

Access for repairs

Access to Neighbouring Land Act 1992 gives limited right of access to a neighbours garden/land to carry out 'basic preservation works'. Until this Act was passed, adjoining owners had virtually no right to go onto their neighbour's land unless an express easement had been granted, such as a right to maintain drains, pipes and wires.

Noise and nuisance

Noise and nuisance can be among the most difficult and potentially dangerous neighbour disputes. Before considering any private action, consider whether it would be sensible to seek help from local and other authorities:

Disclosing disputes

Enquiries before contract ask whether the seller knows about any disputes. In Doe v Skegg [2006] All ER (D) 250 (Oct) the adult son of the seller's neighbour had created problems by trespassing and harassing the sellers. The seller had considered mentioning the problems, but had decided against doing so since there was no real 'dispute', merely his complaints, and because the problems related only to antisocial behaviour and were not about the property in the way that, for example, a dispute over boundaries would have been. The buyer alleged fraudulent misrepresentation as the seller had answered 'no' to the relevant enquiries before contract.

The claim was allowed. The word 'dispute' covers a situation where one party has threatened legal proceedings against another. The dispute was 'over the property' in that trespass was involved. The answer given had been false. The seller had carefully considered whether to disclose the dispute and had been aware that disclosing it would have been the honest thing to do. He had known that his answers were not truthful, and, in the circumstances, his behaviour had been fraudulent.