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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9348
Experience:  I have been practising for 30 years.
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Residing in a terraced property, with the front garden of

Customer Question

Residing in a terraced property, with the front garden of the two adjoining properties sharing a joint walkway leading to a shared passage. This shared passage gains access to the rear of the two adjoining properties, the garden is not a shared access (all details are written in a covenant). Previously a wall existed and separating the gardens and locked doors from the shared passage allowed access to each owner of the two properties. One neighbour has now built a single story rear extension. When doing so, the fence separating the two properties and the doors were removed to allow for building work. The extension has been built within a few inches of the boundary line, which if the wall was to be replaced, would restrict access to their garden via the shared walkway as it only allows 3 inches between a boundary wall and their property. Where does the neighbour without an extension stand?
Submitted: 1 year ago.
Category: Law
Expert:  Jo C. replied 1 year ago.
Sorry, I didn't mean to respond to this.I will opt out.
Customer: replied 1 year ago.
Please can you opt out as I am looking for a solution to my query. Thank you
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Customer: replied 1 year ago.
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Expert:  F E Smith replied 1 year ago.
Is it possible that you could attach a sketch of the layout?If the extension has now been finished, when was it completed and if there is an issue with this, why was it not raised at a much earlier stage?
Customer: replied 1 year ago.
The issue was not raised during planning permission as neighbour one did not want to prevent planning permission being granted for neighbour two - attempting to be neighbourly. The completion of this extension has now caused various problems between the two parties
Expert:  F E Smith replied 1 year ago.
The problem is between the red line marked Boundary Line (now removed) and the Green line which marks the edge of the extension of neighbour 2 and also the world built up by neighbour 2.The answer is straightforward. If there is only 3 inches between the neighbour 2’s wall and the boundary, then neighbour 2 has a problem.Neighbour 1 doesn’t have a problem because regardless of whether the Redline wall is replaced or not, neighbour 2 is not allowed to come over onto neighbour 1’s property to access around the back of their house because that is trespass.In effect, neighbour 2 has shot themselves in the foot and caused a problem for themselves. As presumably knocking down the extension and then you wall is not an option, if neighbour 1 feels like it, neighbour 1 could sell neighbour 2 a narrow strip of land to allow neighbour 1 to go around the back of the house.There is no formula for that and neighbour 1 in circumstances like this is able to hold neighbour 2 to ransom.Can I clarify anything for you?Please do not forget to rate the service positive. It’s an important part of the process so that experts get credit for their timeBest wishesFES
Customer: replied 1 year ago.
Thank you FE Smith. Can neighbour 2 access the rear of their property by using the shared walkway this entering neighbour 1s garden? Is there any legal implication of neighbour 1 installing a gate at the end of the covered walkway to prevent neighbour 2 from entering their garden?
Expert:  F E Smith replied 1 year ago.
Imagine the gates are still in place and imagine the Boundary line wall is still in place. The neighbour is only able to access the Shared Walkway through the gardens, the Covered Shared Walkway and the arrowhead -shaped portion where on the photograph you have written Removed Gates.Neighbour 2 is not allowed to go on any of the area which is marked as Neighbour 1 Garden.If you are asking whether neighbour 1 could put gates across the back of the property which, on the sketch plan would be a line through the top of the word Gates, the answer to that is not if it would be a substantial obstruction. There have been many legal arguments over whether an obstruction (usually gates) is substantial or not. Neighbour 1 is not able to stop neighbour 2 accessing the arrowhead at the end of the Covered Shared Walkway. If the intention of this is to prevent the neighbour entering their garden, then no they can’t. It may be an impossibility for the neighbours to enter their garden because of the very narrow width available to them but they are still able to walk down the Covered Walkway as far as the arrowhead at the bottom end, to their hearts content.Neighbour 2 has in effect denied himself access to his rear garden except by going through the house. Whilst that might seem to be a disaster, there are many terraced houses, ancient and modern in exactly the same situation. If it’s a problem for neighbour 2, it is a problem of his own making.
Customer: replied 1 year ago.
Thank you. Neighbour one has advised that they will be installing a one new gate where the old two (that split to access own gardens) were. They have advised that they will not deny access to the shared covered walkway as this would be in breach of the covenant that stands, however, advised that since neighbour two has build the extension close to the boundary line, they have forfeited the access to the garden beyond the covered walkway. Is this correct? Can they do this! Is there anything legally neighbour 2 can do to prevent this?
Customer: replied 1 year ago.
Also if neighbour 1 has built a wall and encroached on neighbour 2s land, can neighbour 2 remove this wall?
Expert:  F E Smith replied 1 year ago.
I think that neighbour 1 is on dangerous ground legally with the gate they propose. Physically make sense but legally it is interfering with a little part of the right-of-way all be that the right-of-way is of absolutely no use to neighbour 2 whatsoever from what you have said.They would certainly be on dangerous ground, very dangerous ground if they tried to deny access to the shared covered walkway (even though it is now of little use to neighbour 2).Since the neighbour has built his extension so close to the boundary line he has actually removed his own access. Forfeit is probably the wrong word. He has simply blocked his own access. The right is still there, it is not forfeit, he has just built on it made it impossible.If neighbour 1 has built a wall which trespasses on neighbour 2 was land, and neighbour 2 removes it, that is potentially criminal damage. Neighbour 2 should ask neighbour 1 to remove the wall and if neighbour 1 refuses, then neighbour 2 takes neighbour want to court for an injunction to make neighbour 1 remove the wall and relocate it back onto neighbour 1’s land.Please don’t forget to rate the service positive. I will still follow up any further questions for you.
Customer: replied 1 year ago.
thank you. So am I correct in saying that even though neighbour one cannot use neighbour ones garden to access the rear of their property - as this would amount to trespassing, neighbour one cannot install a gate to protect their garden or rear access from potential trespassers.
Customer: replied 1 year ago.
*neighbour two cannot use neighbour ones garden
Expert:  F E Smith replied 1 year ago.
I did not say that neighbour 1 could not install a gate. What I said was that there is a potential problem if neighbour 1 installs a gate at the end of the walkway because that is likely to interfere with neighbour 2 accessing their small area of land at the end of the covered walkway. What neighbour 1 can do of course is install a gate in the same position as the original gate on the left-hand side of the “arrowhead” and install fence along the line of the original boundary where between the two rear gardens
F E Smith, Advocate
Category: Law
Satisfied Customers: 9348
Experience: I have been practising for 30 years.
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Customer: replied 1 year ago.
Apologies and thank you
Customer: replied 1 year ago.
Do either neighbour have to submit a Party Wall Act notification if they are building a timber fence on the boundary line
Expert:  F E Smith replied 1 year ago.
Wooden fences are not party walls. The reference in the Act is to a party fence wall which must be brick not wood. In addition, the act only applies if you are going to excavate foundations within a certain distance of the neighbours buildings. There is no need to submit a notice for a wooden fence.However, you still need consent of the neighbour if you want to erect the fence on the boundary otherwise, you are going to have to offset it so that the fence is completely on your side. It would only be offset half the width of the fence post which is not a lot.
Customer: replied 1 year ago.
Many thanks. In terms of sending correspondence between neighbours, one party has refused to acknowledge receipt of letters as they are not signed. Can they choose to do this
Expert:  F E Smith replied 1 year ago.
There is no reason not to sign a letter. If you have unsent signed letters, printer them off-again, sign them and put them through the letterbox.Anything said by email is satisfactory if it has just a name on the bottom. It doesn’t have to be physically signed. Electronic signatures are perfectly acceptable in law.The effect of an unsigned document is that it is anonymous and therefore, it can be disregarded if ever it comes to be questioned in court. They may be able to ignore the correspondence but they cannot deny that they received it. The very fact that they are saying they’re going to ignore it is acknowledgement of receipt!