Property encroachment is a common occurrence in any given society. Since people are social beings who live near others and share property boundaries, encroachment is likely to happen. Property encroachment, while seemingly minor, can have significant consequences on both the encroacher and you as the landowner.
Addressing property encroachment as soon as it is noticed is vital in ensuring that your land remains entirely yours without any form of interference. This article will help you understand the intricacies associated with property encroachment.
This article will cover:
Definition and common types of property encroachment
What are your rights if your neighbour encroaches on your property?
How to know if your property has been encroached on
How can property encroachment disputes be resolved without going to court?
Can I claim damages for property encroachment?
Defences to Property Encroachment
What is Property Encroachment?
Property encroachment occurs when a neighbour’s structure or other property intrudes on your land without your consent. This happens when your neighbour crosses into your property by building or extending structures beyond their property line. For example, a neighbour might plant a mango tree with branches extending into your land or construct a wooden fence crossing your boundary without your permission. This kind of encroachment can lead to a border dispute between you and your neighbour.
Common Types of Encroachment
Encroachment takes different forms, but we will address the most common types in the UK.
Tree encroachment: This happens when your neighbour plants a tree whose branches extend into your property. It may also occur when the roots of such a tree extend below the fence into your property. British laws allow such neighbour to trim the branches if it extend into your property, with your express permission.
Fence encroachment: Fence encroachment happens when your neighbour builds a fence that crosses their property line into yours. This encroachment can be either intentional or unintentional. It might be intentional if there’s a dispute over property boundaries and your neighbour is trying to claim ownership. On the other hand, it could be unintentional if the boundary lines are unclear and your neighbour mistakenly believes their property extends to where they placed the fence.
Building encroachment: Building encroachment occurs when any part of your neighbour’s building, whether small or large, crosses their property line and extends onto your land. This could involve either a temporary or permanent structure.
Developer encroachment: Developers might unintentionally encroach on your property during construction projects. Projects like roads, stadiums, hospitals, and community parks could extend slightly into your land without your consent.
Encroachment on common land: Disputes can also arise over encroachment on communal lands and properties. This occurs when someone illegally claims a portion of communal land, leading to a conflict between the encroacher and the community leaders.
What Are Your Rights If Your Neighbour Encroaches On Your Property
Across the UK, few laws currently exist to help protect your property from encroachment. Some other laws provide remedies available after encroachment occurs.
The Commons Act 2006 makes the following provisions.
As a homeowner facing property encroachment, you can apply to the court to have all unlawful structures removed, provided the land is registered as common land in England or Wales.
An application can be made to ask the court for an order to enforce the removal of unauthorised buildings, fences, or other works on common land.
Role of Land Registry in Determining Property Dispute
The Land Registry in the UK is responsible for keeping information about property boundaries, but it doesn’t define them. However, you can ensure that your exact legal boundary is shown on the register. This is known as a “Determined Boundary” To do this, you must take the following steps:
Pay a £90 application fee to the Land Registry.
After payment, you would also need to hire a surveyor and a solicitor.
Ensure your neighbour agrees with your application by signing the application form and the plan.
Apply to the Land Registry
If your application is successful, the Land Registry will send you and your neighbour a copy of the updated title plan and Register.
After these steps have been taken, any other boundary dispute that may arise may be resolved by the Land Registry by referring such dispute to the Land Tribunal.
How To Know If Your Property Has Been Encroached On
If you suspect that your property has been encroached upon, it’s essential to verify the boundaries and ensure that your land rights are intact. A key step in this process is understanding how to interpret Land Registry Plans and property deeds.
Land Registry Plans and property deeds can also be referred to as title plans or title registers. They are public documents that provide information about any property registered in the UK. To access these documents through the HM Land Registry (HMLR) portal, you’ll need to pay a £3 fee for each document.
The Land Registry plan is typically colour-coded to indicate different aspects of the property and its boundaries. Here are a few key colours to look for in a Land Registry plan:
Red: The property that is subject to the inquiry
Green: Represents retained lands
Brown: Right of way that benefits the property
Blue: Right of way that affects the property
Red edging: Shows the extent or legal boundary of the registered land
To understand the Land Registry plans better, you should engage the services of a chartered Surveyor. This will help ensure that you make the best-informed decisions concerning your property.
Chartered surveyors are professionals who can provide expert opinions on the value of your property based on various factors such as location, condition, and market demand. They can also help determine boundaries and resolve disputes between you and your neighbour. They use various tools and techniques to provide evidence and advice that can help resolve disputes and avoid extensive legal battles.
The Chartered surveyor will visit the site and take professional photographs to create a topographical and historical site plan. These photos will help point out where boundaries and property lines overlay. It will also help them locate where the proper boundaries lie in relation to the existing features on the land.
How Can Property Encroachment Disputes Be Resolved Without Going To Court?
Resolving property encroachment disputes without resorting to court proceedings can save time, money, and stress. One effective way to achieve this is through Alternative Dispute Resolution (ADR).
Alternative Dispute Resolution (ADR) refers to several ways by which property encroachment disputes may be resolved without going to court. It is a straightforward, swift, and cost-effective approach to resolving disputes. The most common ADR approaches include mediation, arbitration, and negotiation.
Employing any of these approaches is a great alternative to court litigation. You may even decide to hire a solicitor to represent your interest while going through any of these ADR approaches. This will help reach a mutually acceptable solution and foster productive resolutions without having to see the four walls of a court building. Unlike court proceedings, which can drag on for months or even years, ADR can help resolve your encroachment dispute quickly and efficiently, keeping you out of the courtroom while achieving a satisfactory outcome.
Steps To Take When You Suspect Encroachment
If you suspect that your neighbour has encroached on your property, there are several steps you can take to address the situation effectively and potentially avoid a lengthy legal battle.
Communicate with your neighbour: This is the first step to take if you suspect encroachment. Initiate a constructive dialogue with them, expressing your understanding of the boundary lines. It’s possible that the encroachment was unintentional. If this is not the case, you may tender your title deed showing where the boundaries lie and how they have encroached on your property. This singular step may go a long way in avoiding a lengthy legal battle and maintain a positive relationship with your neighbour.
Consult relevant documents: If communication with your neighbour fails, you can apply to the Land Registry for title plans, which will provide a clear picture of the property lines. This will further help to resolve the encroachment dispute. You may hire a Chartered surveyor to help interpret the Land Registry plan professionally.
Consider Mediation: Mediation might be the next best option if the above steps don’t lead to a resolution. Engaging a neutral third party, such as a mediator or a qualified solicitor, can help both parties reach an amicable solution without going to court. Mediation is often faster and less confrontational, preserving the friendly relationship between you and your neighbour.
Legal recourse: This is the last and final step you can take to resolve an encroachment dispute. This should also be a last recourse and only be considered when other approaches fail. This is because a legal recourse will likely strain the friendly relationship between you and your neighbour. You would also need to hire a solicitor to represent your interests and advise you on how to proceed with your claim.
Can I Claim Damages For Property Encroachment?
If your property has been encroached on, you may be eligible for several legal reliefs, such as;
Injunctions
An injunction is a court order mandating a person or a group of persons in a civil proceeding to carry out or desist from carrying out certain actions. The court may grant a prohibitory injunction ordering your neighbour to stop the encroachment on your property. It may also grant a mandatory injunction, empowering you with the right to eliminate such encroachments.
Damages
Damages refer to monetary awards granted by the court to compensate a claimant who has suffered loss or damage as a result of the defendant’s actions. They are usually awarded to compensate the claimant and punish the defendant for the wrong he has caused the claimant to suffer.
The court may award you damages amounting to a specific amount for the encroachment on your property. This amount is payable by the encroacher and serves to compensate you and punish the encroacher equally.
Damages can cover several aspects, including:
Loss of Use: Compensation for the time during which you were unable to use the encroached portion of your property.
Restoration Costs: The expenses involved in removing any encroaching structures and restoring your property to its original condition.
Diminished Property Value: If the encroachment has decreased the value of your property, you can claim damages to cover this loss.
Legal Fees: You may be able to recover the legal costs incurred in pursuing the encroachment claim.
Emotional Distress: In some cases, you might be entitled to compensation for the emotional distress caused by the encroachment.
Common Defences in Property Encroachment Cases
When facing a property encroachment claim, the defendant may raise several legal defences to justify their actions. Here are some of the most common defences:
Adverse possession
This refers to a legal principle that allows the defendant to acquire ownership of another person’s land just by occupying it for a specified period. This is also known as “Squatter’s right” in some jurisdictions.
If the defendant can prove that they have openly, continuously, and exclusively used the encroached land for a specified period (usually 10 to 12 years in the UK), they may be able to claim legal ownership, effectively nullifying the encroachment claim.
Right Of Way And Easement
A right of way is a type of easement that grants someone else the right to cross your land to get to their property. While easements are rights that allow someone else to use your land for a specific purpose. An example of an easement is a drainage that runs across your property to get to another location.
Easement and right of way may be public or private, depending on land topography and other factors. Both are defences one can employ to negate an encroachment claim.
Profit-à-prendre
Profit-à-prendre appurtenant is a term that loosely translates to “Advantage for the benefit of taking”. It is a non-possessory interest in land that gives the holder the right to take mineral resources such as petroleum, minerals, timber, and wild game from another person’s land.
If the encroachment relates to the exercise of this right, the defendant could use it as a defence, arguing that their actions were legally justified under this principle.
Necessity
The defence of necessity may be raised if the encroachment was unavoidable and done to prevent significant harm or damage. For example, if the encroachment occurred to prevent flooding or other emergencies, the defendant might argue that the actions were necessary and justified.
Conclusion
Addressing encroachment on your property is your right as a landowner. Sitting back and folding your arms while your property is being encroached upon may result in losing an encroached portion of the land. Addressing encroachment on your land is necessary to ensure the protection of your land, prevent escalation, maintain your property value, and prevent adverse possession.
When resolving property encroachment disputes, taking action quickly is crucial to protecting your rights and avoiding costly legal battles. At Lawhive, we understand how stressful these disputes can be and are here to offer expert guidance tailored to your specific situation.
Don’t let encroachment issues escalate. Contact our experienced legal team today to explore your options and find the most effective path forward. Whether you need mediation, negotiation, or strong representation in court, Lawhive is committed to defending your property rights and achieving the best possible outcome for you.
Contact Lawhive now to secure the expert assistance you need to resolve your property dispute and reclaim your peace of mind.