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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 10401
Experience:  I have been practising for 30 years.
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My neighbour had a fence put up yesterday on their property.

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My neighbour had a fence put up yesterday on their property. However the workmen doing the work were on our property most of the day making it difficult to get access to the back of our property which we use as our main means of entry. We had not be consulted about this work or if it was ok for the men to be on our property. They even sat on our steps leaning against our back gate while they had a coffee break and pushed their wheelbarrow up our drive to fill in a gap at the back of the fencing. Now the fencing has been put up it has left a gap all the way along the boundary between the properties which you could easily get a Childs foot caught in. I have two young children and use the pathway down the side everyday. What can we do and should the workmen have even been on our property without our permission. Thank you Jacqueline Greaves

They should not have been on your property without permission but under the Access to Neighbouring Land Act if this was work required to preserve next-door’s property, (replace the fence), you have to give them access. They could apply to court to compel you to give it but they mustn’t cause any damage and if they do, they are liable to put it right.

The reality I’m afraid to tell you is that as this has now been and gone, there is very little that you can do about it, except to say that they must ask you if they want permission to do anything like this again. The practicality however is that if they don’t, you are forcibly making an application to court for a court order for them to for consent, consent which ultimately you are going to have to give them anyway. Nonetheless, it is trespass although trespass is not generally actionable unless there is damage or nuisance on an ongoing basis.

With regard to the gap, I haven’t seen it but if they have created a trap, they would be liable for any injuries resulting from the trap. Give them notice that if anyone is injured as a result of getting their foot caught in this trap, you will hold them liable but as you are now aware of the potential trap it also put a duty on you to make sure that your children are kept safe from harm by being aware of the potential from this.

I know that the majority of this is not what you wanted to hear but that is the legal situation.

Can I clarify anything for you? Please rate the service positive so that I get paid. We can still exchange emails. Best wishes. FES.

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Customer: replied 1 year ago.
Thank you for the response. The fence is a new fence that has been put up. So if they need to repair it they must now ask our permission am I right in that. We do try to keep our children safe but as they are both under 4 all it will take is for one to run ahead of us and fall and they will hurt themselves if they are near the gap. Do I just put all this in a letter to my neighbour as we are not on speaking terms.
Customer: replied 1 year ago.
Just want to clarify something with the gap between the fence. The pathway between our house is higher than the neighbours pathway and so if we or someone catches their foot because they were walking close to the fence near the edge of the pathway would the neighbour still be liable or would we.
Customer: replied 1 year ago.
I am not sure if you tried phoning me the other evening I had a missed call as I was seeing to my two young children.

If they need to repair or maintain the property, then under the Access to Neighbouring Land Act they are entitled to access but they should ask for access first. If you do not Atlantic, they can take you to court and the court will make you give them access.

I think it’s better that everything is in writing even if you are on speaking terms but with those terms being a little fraught.

The person would be liable is the one caused the problem and created the trap. In your particular case, if your pathway didn’t come up to the boundary and there was an edge prior to the fence and putting the fence up simply created a gap, it seems that the fence hasn’t made things any worse because anyone could have fallen off the edge of your path in any event. The difference would be whether their foot caught between the fence and the path. In cases like that, I think liability would probably be 50-50.

The other issue is you have now admitted that you are aware of this potential trap and hence, that you on thehook for liability.

Customer: replied 1 year ago.
Thank you for that it is frustrating because yes we have always known that due to the height of the path you could drop into the neighbours garden but this was very obvious. Now because of the fence it makes it harder to see that drop and yes fair enough we need to make people aware but we can't even make it safe by filling the gap in as it is on the neighbours property.
Customer: replied 1 year ago.
In many ways I need really for someone to see my problem because we want to ensure the safety of everyone but our path does go right to the boundary it's just that because we are on a hill and so our house is positioned higher than the neighbours the pathway would always have a drop to the side of it like a cliff edge. Because they have not built their fence up to the cliff edge if you like that is what has now caused the issue with the gap. As before it was a large space to drop down now you can get your foot caught in it if you did not know it was there. But we can't fill it to make it safe as it is on their property.

Anyone who drops down the gap is actually a trespasser but under the Occupiers Liability Act, 1984, there is a duty to keep even trespasses safe from harm and if they have created a trap, they are potentially liable.

I can imagine exactly the scenario here. Your path goes right up to the boundary, the land drops away and then there is this fence so there is a gap between your path and their fence which wouldn’t be there had they put their fence right up against the boundary. I think you can do at this stage is bring it to their attention and ask whether you could do something to prevent anyone getting injured bearing in mind that you would not be able to fill it in because that would lead to the fence rotting in all probability