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Remus2004
Remus2004, Barrister
Category: Property Law
Satisfied Customers: 70209
Experience:  Over 5 years in practice.
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Please can you help. We have guttering overhanging onto our

Customer Question

Please can you help. We have guttering overhanging onto our neighbours property, through an ongoing dispute they have asked us to remove it is encroaching on their land. We have asked a builder to remove the guttering this month.They are now refusing the builder to put up scaffolding on their land. Can they do this as this is the only option we have to amend the problem.
Submitted: 3 years ago.
Category: Property Law
Expert:  Remus2004 replied 3 years ago.
Thank you for your question. My name is XXXXX XXXXX I will try to help with this.

Why will they not let the builder do this please?
Customer: replied 3 years ago.
They have decking where the scaffolding may need to go plus they have a flat roof extension they think he will damage.
When we had our extension done 11 years ago he accused the builder of damaging his flat roof then but it was never proven.
They also have dogs and say it would stress them, they themselves have had a side extension which means you have to go through the house. But what we proposed to do is take a back panel away from the rear fence boundary and replace it at the end of each day. The letter they put through the letter box says we have cost them lots of money in the past and don't see why they should help us save money on the roof correction.
Customer: replied 3 years ago.
I have already responded to this question
Expert:  Remus2004 replied 3 years ago.
The reason you are experiencing delay is that you posted before I responded which pushes the question to the back of my list.

It appears that they want you to remove this gutter but are making it impossible to do so by refusing access.

If they want the gutters removed, and they take you to court to get a court order to make you remove them, they will get the court order and they will get an adverse costs award against you.

If however you are willing to remove it without going to court but.for health and safety reasons this must be done with scaffolding or you need some other kind of access which they will not allow, they are likely to get the court order, but it will be conditional upon them allowing you to put scaffolding up and they are likely to get costs awarded against them.

Can I clarify anything for you?

Jo
Customer: replied 3 years ago.
Does this mean by law the builder is allowed on there property under the health and safety act. If so can you send a letter confirming this so I can show this to them. We intend to remove a rear panel from our boundary fence, on the other side unfortunately they have a bamboo fence which should not be there so do they have to take this fence down by law, as it is higher than 6'.
There has been no mention of going to court about this matter.
Expert:  Remus2004 replied 3 years ago.
Not quite.

The health and safety legislation does not grant access. Access is granted under the Access to Neighbouring Land Act for any work required to "preserve" the property.

However, this is not work required to preserve your property. This is work required to abate trespass at their request.

So there is actually nothing in legislation which requires them to give you access. But the court will not make you remove the gutter if the neighbour refuses access.

It means that if the job can be done without scaffolding and could be done from a ladder. They will have to allow him consent for the ladder, but not necessarily for the scaffolding.

If they want it removed, they are going to have to allow access of access is needed. If it can only be removed for health and safety reasons, using scaffolding, they are going to have to allow the scaffolding.

At this stage, they appear to want it to be removed, but are unwilling to grant access which means they are looking for the impossible.

They are not allowed to have a fence which is higher than 2 m without planning consent, but that is an issue for the planning authority
Customer: replied 3 years ago.
We are very confused as to what we are supposed to do we have the builder coming on the 24th of this month, they knew we had this organised since before Christmas. The builder has even said he will remove the scaffolding at the end of each day. Can you draft us a letter explains the health and safety. If we took them to court it would take ages and we really need to move now. We will not be able to sell with this over our heads.
How often can we contact you.
Expert:  Remus2004 replied 3 years ago.
As soon as you rate an answer then you can ask as many follow ups as you like as long as they are related to the original topic.

We cannot draft letters though. This is a question and answer site. I can give you general information upon your situation but if you want a solicitor's letter to be despatched then you will need to see a high street solicitor.
Remus2004 and 2 other Property Law Specialists are ready to help you
Customer: replied 3 years ago.
Your advise has been brilliant but we can not afford to tip you sorry
Expert:  Remus2004 replied 3 years ago.
No problem and all the best.

Remember that I am always available to help with your questions. Even if I am in Court I will usually pick up a question within 12 hours. For future information, please start your question with ‘For Jo C’. You can also bookmark my profile http://www.justanswer.co.uk/law/expert-remus2004/
Customer: replied 3 years ago.
Hi, when we spoke before you said if our neighbours took us to court over the guttering trespassing on there land, because they will not give permission for us to go on there land the court would probably find in our favour and they would incur costs. What if we took them to court for not letting us rectify the guttering problem because once this is done we want to put the property on the market. Do you think that the court would find in our favour and they would incur the costs? We have just had the builder round to look at moving the guttering and he said it is impossible to do without going on there proprty as there facia boards and guttering would need sorting out.
Expert:  Remus2004 replied 3 years ago.
If you want to go on their land because you want to rectify this of your own volition, they are not under any duty to allow you to do so because this is not work required to preserve your property. However, as I have already said, if they want you to remove this, they are going to have do allow you access.

If you want the matter determined once and for all, so that you can sell the property without the dispute, you can take them to court to make them either allow you access to remove the trespass or to grant that an easement and you can ask the court to award costs against them for being obstructive and unreasonable