Neighbour has taken part of your garden: What can you do?

Having a neighbour encroach on your property can be a difficult subject to broach. What might have started out looking like a small and innocuous plant to your neighbour can soon grow into a substantial hedge that extends well beyond their boundary, albeit innocently, reducing the amount of land which you can enjoy. 

On the other hand, it is not unknown for neighbours to deliberately erect a fence or build a wall beyond what you believe to be the agreed boundary line. In these cases, you might be wondering if you can remove your neighbours property from your land. 

If you think your neighbour has encroached onto land belonging to you, then there are a series of steps you can take to determine whether this is in fact the case. We outline the steps you can take to achieve a resolution by claiming the land back or securing appropriate compensation.

Step 1 – Talk to your neighbour about the encroachment

In some cases, it may be possible for you and your neighbour to resolve the boundary issues by simply speaking to one another.  This is particularly so where the root of the problem stems from confusion on your neighbour’s part as to where the correct boundary lies.

A polite clarification might be all that is needed to persuade them to return the land to you.  Alternatively, to preserve the status quo, it may be possible to negotiate to sell them the land with relative ease and little expense. 

Step 2 – Talk to a property disputes expert

Where informal discussions with your neighbour fail to have the desired effect, then it will usually be appropriate to speak to a dispute resolution solicitor to see what they suggest you do next.  The advice you are given will depend on the strength of your position, what it is you want to achieve and how willing you think your neighbour will be to work with you to find a solution.

Your solicitor will consider the available evidence and in particular:

• The deeds to your property and that of your neighbour and what they say about ownership of the land in dispute;
• Previous sale agreements for both properties and any plans for your respective homes and gardens that may be attached;
• Old photographs in which the location of previous fences, hedges or even ditches separating your properties can be seen and against which the location of current boundary features can be compared to see if they have been moved;
• Any paperwork which suggests that the strip of land in dispute may have been sold off by a previous owner of your property so that it can no longer be said to be yours; and
• Any evidence produced by your neighbour to suggest that they have been in occupation of the disputed land for 12 years or more without objection and which may now entitle them to claim ownership under the law of adverse possession.

Depending on the circumstances, your solicitor may advise you to hold fire while further investigations are carried out.  Or, if the rights are clear, they can explain the position in a letter and indicate your intention to seek recovery of the land or a fixed amount of compensation.

Where encroachment can be proved, factors relevant to deciding whether recovery or a monetary payment should be sought include:

• The degree of encroachment that has occurred and whether it amounts to a few inches or one or more feet;
• The degree of ease with which the disputed land could be returned to you; with the removal and resiting of a fence simpler to deal with than the dismantling of a wall which forms part of an extension;
• How important the land is to you and any plans you may have for the extension or development of your own home or garden; and
• The view of your mortgage company, who in most cases will need to be informed where it can be proved that part of the land they have lent money on has been unlawfully acquired by someone else. 

Step 3 – Expert opinion or mediation

Where the evidence points to the land being yours, but neither talking to your neighbour or exchanging correspondence with them has been successful in achieving an acceptable outcome, then your solicitor is likely to suggest that you consider asking whether they would agree to enlist the help of someone entirely independent of the dispute, such as a:

• Surveyor, who can review the documents that have been obtained and consider the current and historical layout of your respective properties in order to give you their professional opinion on where they think the true boundary lies;
• Retired judge or senior lawyer, who can provide a considered view on any legal issues that may be causing disagreement, such as the likelihood of a claim for adverse possession being successfully advanced or defeated; or
• Trained mediator, who can help you and your neighbour to work together (with the continued support of your solicitor) in order to discuss your opposing views and to see if there is any middle ground that could be used to find a way forward. 

Step 4 – Think about court proceedings or making a reference to the Land Registry 

Where none of the above options work, or where they are deemed inappropriate due to the attitude of your neighbour or the particular circumstances of your case, then your solicitor is likely to suggest taking the matter to court or, if appropriate (and your property is registered), referring it to the Land Registry who can refer it to a specialist property tribunal.

The advantage of going down this route is that determination of your dispute will be made whether your neighbour likes it or not and (save for limited rights of appeal) any decision made by the court or tribunal will be binding and therefore enforceable.

The disadvantage is that formal proceedings of this sort can be expensive and time-consuming to pursue, although on the cost front it is worth mentioning that there are insurance policies that you may be able to buy which can help to cover your costs and indeed cover may already exist under the terms of your current home insurance policy.

For further information on the resolution of boundary disputes and other types of property disagreements, please contact a member of our Dispute Resolution team at our York office on 01904 624185.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.