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Joshua
Joshua, Lawyer
Category: Property Law
Satisfied Customers: 26070
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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I own a property with a boundary wall on to a neighbour's

Resolved Question:

I own a property with a boundary wall on to a neighbour's garden, The wall has 2 windows overlooking this garden that have been there for more than 70 years. I need access to the wall and windows for maintenance and repair. My neighbour has buily a continuous planted trellis fence along the whole of the wall which obscures the windows and she will not allow me access. Do I have any legal right to gain access for maintenace and repair? This would require removal of the fence and arbour while the work is being carried out.
Submitted: 3 months ago.
Category: Property Law
Expert:  Joshua replied 3 months ago.

Hello and thank you for your question. I will be very pleased to assist you. I'm a practising lawyer in England with over 10 years experience.

  1. May I ask how long roughly the fence obscuring your windows has been in place for?
  2. Does it clock light significantly through the windows?
Customer: replied 3 months ago.
It started as a small trellis 20 odd years ago and has been made more solid am an arbour built about 10 years ago. The arbour is directly in front of one of the windows and blocks 70% of the light. Thanks
Expert:  Joshua replied 3 months ago.
  1. Thank you - so that new larger structure has been in place for around 10 years?
  2. Lastly do you know if there is any provision in your deeds that your deeds that restricts your rights to light ove that neighbouring land?
Customer: replied 3 months ago.
I can't talk at the moment so please send a written reply, including any recent changes in law of access in these cases. Thank Joshua
Customer: replied 3 months ago.
1. Yes
2. No
Expert:  Joshua replied 3 months ago.

Thank you - ref 2 sorry is that no there isn't or no as in you don't know?

Customer: replied 3 months ago.
The property was purchased by my wife's parents in 1953 and she inherited it in 1990. The windows now blocked was installed on the 50s by agreement between parents and previous owner of adjoning property. At the time the boundary of the adjoining garden stopped short of the second window, that had always been there. The boundary of the garden was redrawn by AO 'in accordance with the LR plan' to include land in front of the second window. The garden is carved out of The Bell Green, owned by Walberswick common lands charity but does appear as front garden on the LR plan
Customer: replied 3 months ago.
Is there any further information you need, Joshua?
Expert:  Joshua replied 3 months ago.

Sorry no thats fine. I am just in the process of typing my full reply - I am sorry for the delay - I have been stuck on two long phone calls. I will post my reply in a few minutes with your permission...

Customer: replied 3 months ago.
Thank you Joshua
Expert:  Joshua replied 3 months ago.

I apologise for the delay in reverting to you. thank you for the above information. Unless your deeds contain restriction restricting your rights to light over the neighbouring lands, from what you say, your property will have the required is nothing else, prescriptive rights to light over theland by virtue of long use.

accordingly, your neighbour placing objects of any kind front of your windows so as to block or substantially restrict the light you enjoy through those windows may amount to an unlawful interference with your right to light. To succeed in an action for interference with a right to light it is not enough to show that the light enjoyed is less than it was before. You must show that the reduction in the light enjoyed amounts to a nuisance. Nuisance arises if there has been: "as a matter of common sense, such a deprivation of light as to render the occupation of the [dominant land] uncomfortable in accordance with the ordinary ideas of mankind." (Colls v Home and Colonial Stores [1904] AC 179).

essentially what this means, is if you can demonstrate the light being blocked is quite significant you may have a claim for a nuisance and unlawful intererence with your right to light and seek injunctive relief requiring her to remove the items at least sufficiently so as to allow sufficient light through your windows. To seek an injunction in this respect you would need to complete form N16A and have evidence both of the interference in question, a report from a specialist surveyor to confirm the reduction in light if the court requires it and evidence you have asked her to remove the obstacles before issuing proceedings:

https://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=402

in terms of getting access to your neighbours land for the purposes of maintenance, you would need to obtain your neighbours permission this respect. If she is unwilling to give such permission, you would need to consider applying for a court order and the access to neighbouring lands act. The Access to Neighbouring Land Act 1992 enables access to adjoining or adjacent land for the purpose of carrying out 'basic preservation works' to one's own property including maintenance, repair or renewal of a building and a wide range of other works but not for building works. in order to bring an action, you would need to show evidence of what maintenance works you need to carry out, why they are necessary for maintaining your building as oppposed to just desirable and that you have previously requested access informally and been refused and ask the court for an order to allow access in the period you require it. You can make the application using form N244. There is a fee of £255 unfortunately to make the application which you are unlikely to recover from the neighbour.

https://formfinder.hmctsformfinder.justice.gov.uk/n244-eng.pdf

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