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In early 2018, our neighbour installed their external gutter oversailing our land passing our garden directly abutting our flank wall, in total over 12 meters. No Line of Junction Party Wall Notice was served. Our objection was ignored even before their roof was completed. In September 2018, we engaged an independent RICS surveyor, hoping for a joint boundary survey to share the findings and the cost. The surveyor’s offer was declined by the neighbour. So we had borne the full cost of the survey and the report was received in June 2019. In August 2019 we found out that at some point between May and August 2019 the neighbour cut down our metal wire fence on the boundary. Because we could not provide video evidence of the action itself, the police filed the incident as a crime of no lines of enquiry in November 2019.
I have to emphasise that this is not a case of a couple of inches overhang. The neighbour’s wall is already slightly over the boundary line and the whole gutter oversails our land and goes underneath our eave abutting our wall. Because the gap between the walls is small (125 mm), the gutter was poorly installed and leaks water damaging both properties. We have written to the neighbour multiple times and copied part of the surveyor’s report to them. We told them if they do not agree with the surveyor’s conclusion they should arrange for their own independent survey. We did not give the whole report to the neighbour as we think the report is part of our legal documents now should a court hearing is necessary.
I quote part of the conclusions in the surveyor’s report for reference and information.
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It is therefore manifestly the case that the guttering attached to no 5's extension clearly over sails the line demarcated by the concrete edge.
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We therefore conclude that on this basis, any additional physical detailing such as eves features I guttering has created a potential trespass. Visual evidence further backs this point up as the guttering directly abuts the flank wall of no.3's extension and therefore extends over the logical boundary line (the edge of the concrete drive continued in a straight line).
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Whilst this situation has undoubtedly been the cause of significant concern and contention for both neighbours: a logical and practical resolution is possible. We fully appreciate that had a boxed-gutter solution been constructed (when Mrs Wang highlighted her concerns about this issue in her email on 22nd Feb 2018) then this issue may have been more easily avoided. This is still an option but would now be much more costly to the owners of no5 to undertake. Another route forward could be to include an easement for no5 's guttering to over sail the land of no 3. Agreement for Lawyers fees to draw this up would need to be established in this instance.
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We are not willing to go easement route. We argue:
1. What is the point of a Party Wall Act if one party, for their own benefit/convenience, can build over/oversail the boundary onto another party’s land by not serving that party a notice and without their permission?
2. We are at risk of creating an unprecedented case that one can ignore Party Wall Act to build over/oversail neighbouring land and afterwards refuse to take responsibility to rectify the problem and expect an easement at the other party’s costs.
3. The section of the gutter involved is over 12 meters long with part of it passing through our garden. We do not agree that the impact of an easement for such a gutter is negligible. Long term damage and value lost to our property weighs more than the cost of rectification now.
After the neighbour cut down our fence we have been living in constant worry that they might further do something similar. What we want is trespass structure removed from our land and a definitive boundary line registered. We know little about easement and do not want to have any legal arrangement with the neighbour. We simply want to live in the house or sell the house without complicated legal issue.
Being considerate we paused our discussion with the neighbour during the pandemic. With the neighbour neither agreeing on our survey report nor arranging their own survey, what should we do?
I have to emphasise that this is not a case of a couple of inches overhang. The neighbour’s wall is already slightly over the boundary line and the whole gutter oversails our land and goes underneath our eave abutting our wall. Because the gap between the walls is small (125 mm), the gutter was poorly installed and leaks water damaging both properties. We have written to the neighbour multiple times and copied part of the surveyor’s report to them. We told them if they do not agree with the surveyor’s conclusion they should arrange for their own independent survey. We did not give the whole report to the neighbour as we think the report is part of our legal documents now should a court hearing is necessary.
I quote part of the conclusions in the surveyor’s report for reference and information.
“ …………………
It is therefore manifestly the case that the guttering attached to no 5's extension clearly over sails the line demarcated by the concrete edge.
……………………
We therefore conclude that on this basis, any additional physical detailing such as eves features I guttering has created a potential trespass. Visual evidence further backs this point up as the guttering directly abuts the flank wall of no.3's extension and therefore extends over the logical boundary line (the edge of the concrete drive continued in a straight line).
………………………
Whilst this situation has undoubtedly been the cause of significant concern and contention for both neighbours: a logical and practical resolution is possible. We fully appreciate that had a boxed-gutter solution been constructed (when Mrs Wang highlighted her concerns about this issue in her email on 22nd Feb 2018) then this issue may have been more easily avoided. This is still an option but would now be much more costly to the owners of no5 to undertake. Another route forward could be to include an easement for no5 's guttering to over sail the land of no 3. Agreement for Lawyers fees to draw this up would need to be established in this instance.
“
We are not willing to go easement route. We argue:
1. What is the point of a Party Wall Act if one party, for their own benefit/convenience, can build over/oversail the boundary onto another party’s land by not serving that party a notice and without their permission?
2. We are at risk of creating an unprecedented case that one can ignore Party Wall Act to build over/oversail neighbouring land and afterwards refuse to take responsibility to rectify the problem and expect an easement at the other party’s costs.
3. The section of the gutter involved is over 12 meters long with part of it passing through our garden. We do not agree that the impact of an easement for such a gutter is negligible. Long term damage and value lost to our property weighs more than the cost of rectification now.
After the neighbour cut down our fence we have been living in constant worry that they might further do something similar. What we want is trespass structure removed from our land and a definitive boundary line registered. We know little about easement and do not want to have any legal arrangement with the neighbour. We simply want to live in the house or sell the house without complicated legal issue.
Being considerate we paused our discussion with the neighbour during the pandemic. With the neighbour neither agreeing on our survey report nor arranging their own survey, what should we do?
- If we go for ADR, is there a specific type of ADR best for our case? Who pays for ADR fee? Are we able to recover our fees for ADR in similar way like if we win a court case?
- If we direct apply for court injunction, will the court punish us because we haven’t tried ADR first? How do we apply for court injunction? Can we ask small claims court for injunction to remove trespass or it is another court? Do we need to engage a solicitor?
- Are we able to claim compensation from the neighbour for their damage to our fence? We have police reference number and photos showing the site before and after the incident.
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