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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9032
Experience:  I have been practising for 30 years.
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I am a leaseholder of a lower ground floor flat with rear

Resolved Question:

Hello.
I am a leaseholder of a lower ground floor flat with rear terrasse.
My upstairs neighbour is also a leaseholder. Her lease also includes a "bridge" over my terrasse that steps down to her garden which is at the rear of my own terrasse. Her lease also includes a wall and garden treillis that edges my terrasse.
My neighbour has planted a vigorous climber that has started to go up the "bridge" and during my absence last year, she has stepped on my terrace without my authorisation and attached the climber to the treillis. The climber has now started to overhang my terrasse by 50cm-1m, which down not suit me since it is messy and shades the terrace in the morning (no more breakfasts in the sun for my family).
I have asked in writing (one sentence) my neighbour to trim her climber to our boundary. I have receive a one pager insult letter which shows no intention to trim the climber. I replied in writing (half a page) to inform her of my common law right to prune the overhanging climber at the boundary of ours property, trying to me as nice or neutral as possible in my wording, and offering my help if she needs access to my terrace. I have received a 3 pager insult letter, qualifying me of being an abuser and a bully, denying my right to trim the climber on the basis that it is just a climber and it is at her floor level, accusing me of abusing of her weak condition (she does not seem particularly weak to me) and threatening to sue me, find ways to put financial burden on me for getting gardeners to prune some of my plants, and take photo evidences would I act.
This is the 3rd occasion she sends me an insult letter. She sued (unsuccessfully) other neighbours in the past, and terrifies most (all?) other neighbours including landlord and managing agent.
My fiancee is worried of coping with her, would I act, and wants me to get a legal opinion.
My questions are:
- do I have the right to trim the climber to the boundary?
- is it advisable to get a third party involved? I am reluctant to get the police in, as worried this would open the pandora box on her side, ands she would try to take revenge on me. Is there a more appropriate 3rd party to involve?
Thank you for your response,
Franck
Submitted: 11 months ago.
Category: Law
Expert:  F E Smith replied 11 months ago.

If she will not remove any growth trees, climber, plants, weeds etc which grows from her property and trespasses onto your property, then you can remove it and actually charge her for the removal if you have to get contractors into do it. You must not do anything that kills it.

Somewhat bizarrely, you cannot keep the bits that you cut off because that is theft and you should return them to her. She might not be very happy if you don’t the clippings onto her land but that’s the situation. You might want to tell her what you’ve been advised and ask her does she want the pieces or does she want you to dispose of them.

If she regularly trespasses personally onto your land, you can apply to court for an injunction to stop her.

If the climber which is on her land blocks your view all the sunlight onto the terrace, that is not actionable. It would be actionable if it blocked at least 50% of the light coming in to a room but not onto a terrace.

A solicitors letter may get more notice taken of it than your own letter although that may inflame the situation so you might want to start with your own letter.

Can I clarify anything for you?

Please do not forget to rate the service positive. It’s an important part of the process whereby experts get paid.

Best wishes

FES.

Customer: replied 11 months ago.
Thank you for your answer, which is very clear as is.
One point: you have not mentioned the Anti-Social Behaviour Act 2003 part 8 in relation to high hedges. Is this not enforceable?
Expert:  F E Smith replied 11 months ago.

I am glad to help.

You are not able to issue an application for an ASBO yourself, it has to be a relevant organisation such as housing association or local authority. Following consultation with the police they would then apply to court for the as both. However that really would be a last stop situation and it’s unlikely to happen here quite simply because the matter is so easy to resolve.

I high hedge is defined in section 66 of the legislation if it is a barrier to light, rises to more than 2 m above the ground and is a tree or shrub evergreen or semievergreen.

If this is coming down from above, then on a strict interpretation it does not rise to more than 2 m above the ground and is not a shrub. I think it fails the nuisance tree definition.

Please don’t forget to rate the service positive so that I get paid. Kind regards .

We can still exchange emails if you want to follow anything

F E Smith, Advocate
Category: Law
Satisfied Customers: 9032
Experience: I have been practising for 30 years.
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