What can you do if one of your neighbours erects a fence or part of an extension on your land? This is known as encroachment and the law does afford a remedy. You might want to try speaking with your neighbour in the first instance or bringing the matter to the attention of the local planning authority. If that doesn’t resolve matters then you might want to consider legal action.
You will probably need to instruct a surveyor to survey the properties and confirm where the boundary lies on the ground and whether your neighbour has crossed this with whatever structure they’ve erected. If encroachment is confirmed you can seek the legal remedy of removal. But hold off on hiring the wrecking ball!
The law governing the remedy of removal is found in the case of Anderson v Brattisanni’s 1978 SLT (Notes) 42. The starting point is that the innocent party is entitled to have any structure on their land removed. The court must then consider whether removal should be refused. This is a power that must be used sparingly and only in exceptional cases. There are three conditions that must be satisfied before the court will refuse removal. Firstly your neighbour built the structure on your land believing it was their own and that it would cause you no upset; secondly the encroachment is minimal and doesn’t affect your enjoyment of your property; and thirdly the removal of the offending structure would cause your neighbour a loss far greater than the advantage it confers upon you.
It is easy to see how a court might be more easily persuaded to order removal of a wooden fence than the demolition of an entire building. Of course, in the latter case other remedies can be pursued. If you are facing this problem and would like some advice please click here to contact us online or call 0333 222 1855 to speak to a member of our specialist team.
