Thank you. The age of the property is very relevant. When these properties were built, people really just built it without consideration of where the boundaries were because land was so cheap and plentiful. The answer is not totally the answer you want but it’s actually very straightforward.
The wall is the boundary. With regard to the gutters and the foundations, if this was a new build property, they would be trespassing into next door’s airspace but, as the property has been built for so long, there is an easement in respect of both the foundations and the gutters either under the doctrine of Lost Modern Grant air under the Prescription Act. Lost Modern Grant is a legal fiction whereby if something has been in place for more years than anyone can remember (as is the case here) then there must have been consent at some stage but it has been lost. Under the Prescription Act and easement is acquired once the trespass has been in place for 20 years or more without consent or objection so with regard to the neighbour, he is barking up the wrong tree with regard to the gutters and the foundations.
However whilst he cannot object to a vent hole in the side of the house, he can object to anything which sticks out because there is no easement acquired in respect of that trespass/projection.
Can I clarify anything for you?
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