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.
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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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.