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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 12081
Experience:  I have been practising for 30 years.
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My neighbour bought the bungalow next door about 18 months

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Hi. My neighbour bought the bungalow next door about 18 months ago. In that time they have refurbished the property. They have also landscaped the garden. It is the garden which is the issue. They removed about 8 conifers (which was OK) but they have also laid new lawn. In doing this however they have lowered the ground level so the boundary between own lawn (which is artificial grass laid 3 years ago) is now some 30cm's or more below ours. As such the ground from our garden is starting to fall into theirs PLUS the concrete footings on the fence posts has been exposed and the posts are now loose and waving in strong wind. I out the garden fencing up 13 years ago. These issues have only started since they did their work. I've spoken to them but they deny lowering the ground level or causing the problem. Soon my garden will start to slope on the edge as the sub soil falls into their garden and the fence posts will fall down. What do i?

Hello for clarification - im assuming that the fence is your boundary?

did you mention anything to them at the time of the work or was it only apparent once completed?

Customer: replied 12 months ago.
Hi. I'm unable to confirm whether the boundary is mine or not i'm afraid but I'm thinking this is probably irrelevant.The fence was erected by me (a landscape gardener) approx 13 years ago. Had no issues until the neighbour completed their works. Which was completed by a 'team' of Polish workers I understand.... not qualified landscapers. So the work was done on the cheap. Our neighbour is now selling the property..... for profit I would suspect.I have photos showing the difference in height between the 2 gardens now. This couldnt have existed beforehand. I also have photos of when I had my lawn laid 6 years ago. No apparent difference in soil height back then.Neighbour refuses any guilt and will not pay a penny to resolve. Once she moves, the new owners will not be happy of course so i need to resolve this quickly.Regards

You have potentially acquired an easement of support in respect of the land which it appears has been like that for more than 20 years. You would require that either under the Prescription Act if it is more than 20 years or under the doctrine of Lost Modern Grant if it has been since time immemorial.

You have not acquired an easement in respect of the fence because you say that it has only been never 13 years BUT if it replaced the previous fence in the same position, then the time the previous fence was in position and the current fence would be added together including time of previous owners. Here is some reading on easements of support:

You also have a potential claim, regardless of the above, in negligence you have something in place and their work is making it fall down.

If they want to move property, and they are selling their house, they are going to have to resolve this pretty quickly because a new buyer is unlikely to want to buy a property with this dispute in place. You need to ask them to confirm that they have advised the buyer of this dispute and told their solicitor and the agent and that if they don’t reply, you will be telling the agent and the solicitor of this issue with the property.

By perpetuating this problem, they are in effect, shooting themselves in the foot in respect of selling their house.

Can I clarify anything else for you?

I’m happy to answer any specific points arising from this.

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If you still need any point clarifying, I will still reply because the thread does not close.

Best wishes.


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Customer: replied 12 months ago.
Many thanks for the response and information. It seems as though you believe that from the data I've given you that we have a very strong case. Would you say 'water tight'? Our neighbour has refused to cooperate so I feel the only way to resolve this is legally. I dont want to end up with a large legal bill though if there is a chance I could lose.If i advise my neighbour I'm going to a solicitors, would she see this as a threat?It's obvious to me that she purchased the bungalow with the sole idea of doing it up quickly and cheaply for a quick profit. Hence the shoddy job in the garden.I could talk to the agent and let them talk to her maybe? Would this be a good route to take?Thanks