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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 15666
Experience:  I have been practising for 30 years.
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I own a lease maisonette a neighbour has erected a fence and

Customer Question

i own a lease maisonette a neighbour has erected a fence and taken a large part of my garden. My freeholder does not wish to get involved in a border dispute and say it is not their responsibility and they have no obligation to do anything. I have spoken with the leasehold association who say the freeholder is obliged to resolve the matter under derogation of grant. I have researched this on the internet and it states the freeholder only has a duty if the possibility of the situation could have been known by them prior its occurrence.
JA: What steps have you taken so far? Have you prepared or filed any paperwork?
Customer: Yes. A surveyor took measurements and I sent these to the freeholder but they required to know how much land had been taken. I have been in communication with the freeholder since August, but as the surveyor (who is a friend and retired) did not want to commit they are now saying they will not help. I did request that hey get in touch with the person involved and ask what possessed them to erect the fence and steal the land but they did not wish to do this without knowing how much land had been taken. So it became stalemate.
JA: Where is the leasehold located?
Customer: Do you mean which town. The address is***** Sutton Coldfield, West Midlands
JA: Anything else you want the Lawyer to know before I connect you?
Customer: I cannot think of anything. Thank You.
Submitted: 6 months ago.
Category: Law
Expert:  F E Smith replied 6 months ago.

Good afternoon. I will assist with your question - be aware this is an email not chat service therefore i maybe delayed in replying.

can you make a guess at the amount of land he has taken and why?

Customer: replied 6 months ago.

I have already done this once this morning. It took me an hour. What has happened to it? Marl**** E****

Expert:  F E Smith replied 6 months ago.

I’m afraid I agree with your own research, it’s unlikely the freeholder is obliged to get involved here. The freeholder is an innocent party.

There is a rather weak argument that the freeholder is allowing nuisance and therefore is in breach of the lease but to be honest it’s not something that I would be going with.

However notwithstanding that, the situation is absolutely straightforward. The amount of land is actually irrelevant but it’s useful to know the scale of the problem.

Assuming that the amount of land which has been “taken” is measurable and there is no dispute over the boundary, then it’s a straightforward application to court for an injunction to make the neighbour move the fence.

It is trespass.

You may find that a strongly worded letter from a solicitor threatening a court application and an application for costs, may focus the mind without actually the need to get to court.

Check your house insurance to see if you have legal expenses cover that would pay for the legal cost of taking this to court.

I would not waste time with lots of correspondence, one letter and then a court application.

This is of course assuming there is no dispute over whether theoretical pencil line of the boundary lies. There is an argument over that, then you are going to need a boundary surveyors report to support your application.

I would start with the solicitors letter.

Can I clarify anything else for you?

I am happy to answer any specific points arising from this.

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Thank you.

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

Best wishes.