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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 69252
Experience:  Over 5 years in practice
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Hello, my neighbour refuses to maintain the fence on

Resolved Question:

Hello, my neighbour refuses to maintain the fence on his side so I have decided to put up my own fence. The workmen think his fence is actually on my land, but what is there has been up for over 20 years. It is under 4 feet high, my deeds state a fence should be erected at least 5 feet high and no more than 6 feet. Also his she lip overhangs into my garden and is hard against my shed causing water to gather and damage my shed. Half his shed was there when I moved in 23 years ago. The added on part was erected under 10 years ago. My new fence is going up and his shed lip is in the way. Am I within my rights to remove his overhanging lip?
Many thanks

Optional Information: 
Province/Country relating to question : United Kingdom

Already Tried: 
I've spoken to him and he insists that his shed is on his land. But the booundary line from my house shows that he is trespassing

Detail Required: HIGH; Urgency: HIGH

Submitted: 1 year ago.
Category: Law
Expert:  Jo C. replied 1 year ago.
Thank you for your question. My name is ***** ***** I will try to help with this.
Can you remove it without causing damage?
Customer: replied 1 year ago.

Are you referring to the shed lip? Removing it would not damage the shed, but it would remove the felt covering on that side...

Expert:  Jo C. replied 1 year ago.
No, the overlapping top?
Customer: replied 1 year ago.

Yes that is what I meant by the lip - the top/roof/apex of his shed overlaps the border.

Customer: replied 1 year ago.

yes, that's what I meant by the lip. The overlap/apex trespasses over the boundary line. One half of the shed has been there for over 20 years the other half was added on 6 years ago. So the half where I am erecting a fence overlaps and interferes with the boundary line.

Expert:  Jo C. replied 1 year ago.
If the lip has been there for under 20 years then he acquires no right for it to be there. If however it has been there for more than 20 years he gains an easement for it to be wary days (even if it does go over the boundary) under the provisions of the Prescription Act.
From what you have said as this part was erected under 10 years ago, you are entitled to have the overhanging part removed.
However if you simply chop it off it is criminal damage which he should report to the police. You are probably better getting a solicitor to write to him telling him that if he doesn’t remove the trespass you will take him to court for an injunction to make him remove it and you will ask the court to award costs against him.
You may have legal expenses insurance attached to your buildings or contents policy so check that because if you do, it may pay for the legal costs.
You cannot have a fence of more than 2 m high without planning consent.
However unless the neighbour covenanted in the deeds when he bought the property (covenants do not automatically pass from one owner to another) it’s not possible to enforce anything which requires work such as making a fence higher or maintaining a fence unless the property is leasehold.
Even if he had acquired an easement for the overhang to be there he is still not allowed for the water run-off to cause nuisance and rot anything on your side and you can also apply to court for an injunction to abate that nuisance.
Can I clarify anything for you?
Jo C., Barrister
Category: Law
Satisfied Customers: 69252
Experience: Over 5 years in practice
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