The law governing encroachment is well established and clear. If encroachment is proved then the remedy is one of removal and reinstatement However it is also open to the court to refuse this under certain circumstances.
The law governing such a remedy was stated in Anderson v Brattisanni’s 1978 SLT (notes) 42.
The decision in Anderson was a result of appeal to the Sheriff’s refusal to make an order of removal in the circumstances of an admitted encroachment. This prompted the first division to provide a statement on the remedy of removal. The relevant passage is as follows:-
“In joining battle upon the Sheriff’s Judgment upon this question, it soon became clear that there was no dispute between the parties as to the relevant law, and what follows in this paragraph of the opinion may be taken to have been accepted and correctly accepted on both sides of the bar. The general rule is that a proprietor is entitled to have any structure erected upon his property removed, there is however an equitable power in the court, in exceptional circumstances, to refuse enforcement of the proprietor’s right at least in the question of encroachment by a neighbouring proprietor … The existence of this power has been recognised in cases such as Sanderson v Geddes, Begg v Jack, Grahame v Magistrates of Kirkcaldy and Wilson v Pottinger.”
From these cases, it is clear that the power may be exercised when the exact restoration of things to their former condition is either impossible or would be attended with unreasonable loss and expense quite disproportionate to the advantage which would be given to the successful party. The power will however be exercised sparingly and it may be deduced that because it has exercised the court will have to be satisfied that encroachment was made in good faith and in the belief that it was un-objectionable, that it is inconsiderable and does not materially impair the proprietor in the enjoyment of his property, and that its removal would cause to the encroacher a loss, wholly disproportionate to the advantage which would confer upon the proprietors”
Thus the starting point in law is that the innocent party is entitled to have any structure on the land removed. The court must then ask whether removal should be refused. Anderson makes it clear that the power to refuse removal is to be used sparingly and only in exceptional cases.
To ensure that the power is only exercised in such exceptional cases, the court created 3 conditions that must be satisfied before the court will refuse to order removal. These conditions are:
- The encroachment was made in good faith on the belief it was unobjectionable;
- The encroachment is inconsiderable and does not materially impair the proprietor in the enjoyment of his property; and
- Its removal would cause the encroacher a loss wholly disproportionate to the advantage which it would confer upon the proprietor.
We at Jackson Boyd are happy to advise you on boundary disputes so that you know exactly what lines your neighbour can’t cross.