Abatement of encroachment/trespass

[Thomas_P]

Hi,

My neighbour has erected a fence on my land. I have asked them to remove it, but they have refused. I believe I have common law rights to remove the fence myself, but cannot seem to find anything definitive. Please could somebody direct me to the legislation and/or case law that confirms my right to remove the fence personally?

Many thanks

[Thomas_P]

Hi,

I would be really grateful if somebody could assist with this please?

Many thanks.

[des8]

OK, but please be patient awaiting a reply.
Posters on here are all volunteers and have other things to do.

Firstly are you sure of where your boundary lies?

If you can't settle the matter amicably with your neighbour I would caution against dismantling the fence yourself.
Presumably your neighbour maintains the fence is properly on the boundary line, so if you start taking it down he could call the police and allege criminal damages, and even possibly concerns about a breach of the peace.

The correct way to go about this is to seek an injunction

[des8]

From Land Registry:
If a wall or fence has been built on your land by an adjoining owner, and shouldn't have been, this would constitute a trespass, which is enforceable by an action for damages and injunction from your local county court. An injunction is an order compelling your neighbour to do some act, e.g. to remove, or move the wall. There is also a right of self-help whereby you could demolish the wall, but in practice it may be dangerous to proceed in this way.

[Thomas_P]

Hi,

Thanks for your replies.

I am certain of where the boundary is and can evidence this.

I am aware that I could resolve this matter through the courts, but I feel strongly that I should not have to pay. If the neighbour wishes to take legal action after I remove the fence, I am happy enough with this, as I know I have a common law right to remove the fence and so this would be my defence. I am just having difficulty locating the actual legislation and/or case law that states this?

Many thanks

[des8]

Here's a case of self help that ended up in huge costs https://www.bailii.org/ew/cases/EWCA/Civ/2008/1631.html
In this case there was an encroachment by the mesh of a fence (but not the fence posts), which constituted a technical trespass. However, applying the principle in Burton v Winters (Burton v Winters [1993] 1 WLR 1077) the Richardson's were wrong to move the McNabs fence whilst they are away.

The slightest encroachment on another’s land is a trespass (Ellis v Loftus Iron Company (1874) LR 10 CP 10, at page 12 per Lord Coleridge CJ). However, that does not mean that the owner of the land on which the trespass has taken place has an absolute right to use self-help to end the trespass.
Other cases that may or may not support your position, but will illustrate what you might be running into, may be found at www.bailii.org

[Thomas_P]

Hi,

Great...thanks for taking the time to assist!