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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9339
Experience:  I have been practising for 30 years.
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With regards to the boundaries and exterior walls of

Customer Question

With regards ***** ***** boundaries and exterior walls of properties, does the boundary usually extend to the foundations of the building, usually a small distance from the outside of your property?
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.

Can we have the full background to your question please and in particular, if anyone is trying to make a claim in respect of the extra strip of land? We also need to know the age of the property please. Thanks.

Customer: replied 1 year ago.
My property was built in 1885. It is a detached property with the rear wall facing onto the neighbours land. I was wanting to put and extractor hood exhaust flush onto the back wall. The man next door has taken against the idea. I spoke to the council planning and development departments, and they have stated that I do not need permission to do this. The chap next door has altered tack and has now raised a boundary issue. He believes that anything that may be protruding from the brick work is in his air space. This now includes my guttering, which has been in place for at least 35 years, and I didn't install this. If he owns all of the land directly behind my rear wall, surely he would own my foundations, which cannot be correct. I have been led to believe that I have ownership of my house foundations, which would give me roughly 5 inches beyond the wall. If this is the case, my guttering and anything that may protrude slightly from the rear of the house is covered. I have copies of my title plan and deeds, but I can't seem to see anything that would tell me that answer.
Expert:  F E Smith replied 1 year ago.

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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We can still exchange emails if you wish.

Best wishes.

FES

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Customer: replied 1 year ago.
Thank you very much!
The vent doesn't actually protrude from the wall, as we weren't granted access to enter his land, we back built it and made it flush to our exterior wall. But thank you again for clarifying the matter with the guttering, which was in place even before I was born. If I could give you 10 stars, I would!!K. Walton
Expert:  F E Smith replied 1 year ago.

Thank you. Under the Access to Neighbouring Land Act, you can go onto his land for any work required to preserve or maintain your property. Hence, if you needed to replace the gutters, and he will give you access, you can apply to court for an injunction to make him and asked the court to award costs in your favour against him. However that only applies to maintenance, not any new work and this would be classed as new work. He can’t do anything about it being flush your exterior wall although if all sorts of fumes come out from the vent, expect him to allege nuisance.

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