Most of us have neighbours, be it across the close in a Glasgow tenement, over the garden wall in a suburban housing development, or perhaps even half a mile away across a field where sheep graze. You might see your neighbours regularly, or even socialise with them. But when it comes to matters of property and land law, relations can quickly sour when even the most minor of disputes arise.
Perhaps the most common and well publicised issue is that of encroachment, usually involving overgrown trees, hedges or bushes growing across the boundaries of one person’s property into another. Tree roots can also encroach at ground level. Generally, you have the right to trim branches from your side of the boundary but it is always a good idea to inform your neighbour first, and legally, the branches still belong to your neighbour and should be returned. Again, mentioning this to them rather than an unceremonious dumping of said branches will be a good idea. While you can trim any growth that crosses into your boundary, it is unlawful for you to cut the tops of hedges or trees without permission – even if you feel you are being robbed of light. In this situation, if is advisable to obtain advice on the best course of action.
What about shared fences and walls? There are different scenarios. A wall or fence may sit inside your boundary, or inside your neighbours – or may straddle both. When inside the boundary, ownership lies, logically, with the person who owns that land. When the wall is on the actual boundary, both neighbours will own the wall to a mid-point. They each have a common interest in the wall.
Clearly, when the wall sits within the boundary, that owner has a duty to maintain their own wall. However, if it is a common interest wall, each neighbour has a duty to maintain the stability of the wall. If one side fails to do this, the other neighbour can go ahead with the work and recoup the costs. However, a neighbour cannot do anything that undermines the stability and structure of the wall. In one infamous case, neighbours went all the way to the House of Lords – at considerable expense – because one believed they had the right to attach a structure to the boundary wall with nails, and the other didn’t, believing the nails could undermine the structural integrity of the wall. The court found the neighbour was entitled to attach fixings to his side of the wall. In this case, warring neighbours determined to prove they were right proved extremely costly. It is always worth attempting non-combative methods such as mediation first, although sometimes this may be difficult if one side refuses to behave reasonably.
When it comes to access, the law of servitudes, which grants one property certain rights over a neighbouring property (such as a right to walk or drive along a track, discharge a sewage drain or lay service pipes and cables) will likely come into effect. Drainage is important as a landowner is entitled to let water that would naturally drain outwith a defined channel do so, onto lower lying land. But this only applies to naturally occurring water such as rain water, or underwater streams. Care must be taken when carrying out building works not to cause excessive water run-off. Furthermore, if water is falling onto a building and draining off, for instance a roof, and falling onto neighbouring property, there is no automatic right for this and the property owner would need a servitude right to do this, which will often be obtained by purchasing the right from the neighbouring landowner. It is unlikely they will be generous enough to grant one without payment!