NEIGHBOUR DISPUTES

A letter from a solicitor may be helpful in making a neighbour realise that you are serious about your complaint. It may be particularly effective in making tenants realise that the next stage might be eviction by their landlord. It may also be necessary when, for example, there is genuine disagreement as to who is responsible for what. However, it should be noted that a letter is a fairly formal step to take, reducing the possibilities of an amicable settlement between neighbours.

Civil action in the courts

Civil actions for nuisance, damages, trespass and so on, may be the ultimate sanction against a neighbour. However, although the particular dispute may be resolved successfully through the courts, it is almost certain that the relationship between the neighbours will be damaged. It is also an extremely expensive course of action to take unless you are eligible for publicly-funded legal services.

COMMON NEIGHBOUR DISPUTES

The following describes some of the most common types of disputes between neighbours. In each case the most suitable course(s) of action to take are outlined.

Access to a neighbour's land for repairs

If you need to carry out repairs to property or land and to have access to the neighbouring property or land in order to carry out these repairs, you may have a right of entry specifically for the purposes of inspection or repair under the property's title documents or lease. If there is no such right, or no agreement can be reached, you can make use of the Access to Neighbouring Land Act 1992. This allows a person wishing to carry out repairs to apply to the county court for an access order allowing you to enter a neighbour's land to carry out the repairs. There is a fee for the application.

When making an access order the court has the power to make other conditions covering, for example, compensation, insurance obligations, how the work is carried out and by whom. Compensation may be payable for the inconvenience caused, as well as for any financial advantage that a person in business might gain from the access.

The court can refuse to make an access order if it is satisfied that it would cause so much hardship and interference with a person's use of the property that it would be unreasonable to make the order.

Repairs

Where there is a shared amenity which is in need of repair the first step is to find out who is responsible for repairs. However the title document or lease do not always provide clear evidence and, in this case, it is probably best to settle in advance that the costs will be shared between owners. If some of the property involved is rented, the tenants may be willing to give the name of the landlord responsible for the repairs. If not, it may be possible to trace the landlord by other means. In a few cases the responsibility for repairs may rest with you.

Provided that fellow residents have agreed to the repairs going ahead, the costs should be divided according to what is said in the title documents. If they do not specify this, the cost should be divided according to the shares previously agreed by the households. Failure to pay a share of the bill becomes a normal debt and can, if necessary, be enforced like other debts.

Emergency Repairs

Consultation may not be possible if the repair required is urgent, for example, a burst pipe, and the other owners involved are not readily available. Provided that there is some written evidence from an expert that immediate repairs must be done, it should be relatively easy to collect contributions afterwards.

Shared Drives

Shared drives are often a source of disputes between neighbours. In general, there is a right of way for each occupier to use the drive, but not to block it. If the neighbour does block the drive, you will have to consult a solicitor to talk about the possibility of getting an injunction to stop the obstruction.

Assaults (including racist attacks and racial harassment)

If a neighbour dispute results in a fight in which someone is assaulted you may want legal action taken against the attacker. The police should be called and may, if someone has been injured, prosecute the attacker, for example, for assault causing actual bodily harm. If the police decide that the assault is too minor or there is insufficient independent evidence, they may not take any further action. In this case you can consider taking a private prosecution or obtaining an injunction.

Bonfires

If a person has a bonfire which is dangerous, a neighbour may enter the premises concerned to control it. You are legally allowed to use any force necessary to overcome resistance to putting it out.

Generally speaking, a person's right to make a bonfire may be affected by clauses in the title documents or lease, by local bye-laws or by any smokeless zone restrictions, but there are no such bye-laws or smokeless zone restrictions in Horsham district. A particularly smelly or smoky bonfire may also constitute a legal "nuisance". If the situation is sufficiently serious to consider such legal action, a solicitor will need to be consulted.

BOUNDARIES, FENCES AND WALLS

If a dispute arises between neighbours about the boundary between their properties, it will be necessary to establish who owns the disputed land. The primary evidence will be contained in the title documents (of a freehold property) or lease (of a leasehold property). Clear evidence of this kind is normally conclusive. If the boundaries are not defined in the title documents there may be a legal presumption as to their position. See below.

However, the boundaries between properties can differ from those described in the title documents or lease in certain circumstances. The most common are where they have been changed by agreement or by encroachment (occupation without permission).

Establishing ownership by agreement

Adjoining property owners may agree to alter their boundaries. If the agreement is legally binding, subsequent purchasers of either property may be bound by it. Legal advice will be necessary to ensure that the agreement is legally binding.

Establishing ownership by encroachment

If a property owner encroaches (occupies without permission, or squats) on your land for at least 12 years, using openly, continuously, exclusively, intentionally and without permission, they acquire a right to that land and can become the legal owner. The legal term for this situation is adverse possession but it is sometimes referred to as squatters rights. The squatter can pass on this interest by gift or will to someone else. In each case the person taking the squatter's interest can add the squatter's period of possession to her/his own. Legal advice will always be necessary if a dispute arises.

Legal presumptions on the position of boundaries

If the boundaries are not defined in the title documents or lease there may be a legal presumption as to their position. A presumption can be contradicted if other evidence can be produced. Some common examples of legal presumptions are:-

In the absence of any clear definition or presumption as to the position of the boundary, evidence should be assembled to indicate its position, for example, plans, photographs or correspondence between adjoining owners over a number of years.

Generally a property owner does not have to erect and maintain any type of barrier, for example, a fence, wall, trellis or railings around his/her property. There are some exceptions to this:

• The title documents or lease of the property may include specific obligations.
• The documents may contain restrictions against putting up a barrier, for example, on a modern open-plan housing estate.
• Under the Occupiers' Liability Act 1957, an occupier owes a duty of care to any lawful visitors to your property to ensure that they will be reasonably safe using the premises for the purposes for which they are permitted to be there. Under the Occupiers' Liability Act 1984, the occupier can also be held liable to trespassers for any personal injuries they suffer.
• If the property is next to the street, the owner must ensure there is no danger to passers-by. This might mean putting a barrier round it, for example, if there are excavations or buildings being demolished.
• If a hedge or tree overhangs the road and obstructs vehicles or passers-by or blocks public lighting or electricity lines, the local authority or public utility can serve a notice on the owner requiring the tree to be cut back within 14 days.
• The owner of land used for dangerous purposes or for storing dangerous objects is liable for any reasonably foreseeable damage or injury caused by them and should, therefore, put up barriers as necessary.

Who can use/repair a barrier

In order to decide who can use and repair a barrier, it is first necessary to establish who owns it. The rules for working out ownership are the same as for other boundaries (see previous rules). In other words, the title documents or lease may specify who owns the fence, or a person may have evidence that it belongs to them. For example, if s/he actually repaired the fence for many years, they may be held to be the owner. However, the amount of repairing would have to be such that only an owner would have undertaken it. In the absence of any such evidence, there may be a legal presumption as to who owns it.

If a barrier belongs to one owner, s/he can use it as s/he wishes, without the neighbour's consent, providing it is safe. The neighbour has no rights over the barrier, for example, s/he cannot use it to support trailing plants without the owner's permission.

If a fence is jointly owned each neighbour can use it for support, provided neither makes it unsafe.

A property owner is not obliged to repair his/her barrier unless the title documents or lease contains such obligations. However, if the barrier causes damage or injury, the owner's neighbour could take a civil action for damages.

Party Walls

Under the Party Wall Act 1966 an owner must notify neighbours of structural work to walls which stand across the boundary of land belonging to different owners, or which are used by two or more owners to separate buildings. There are time limits for objecting to the work and disputes procedures for appointing an independent surveyor to decide what work can be done, how and when.

Planning restrictions on barriers

Planning permission is not generally needed before erecting a fence or wall, provided it is no more than one metre in height (if next to a highway), or two metres elsewhere. There are no planning restrictions on the height of hedges.

In a dispute between neighbours over position of a boundary, the best course of action, as always, is to try to settle the problem amicably. If an amicable solution is not possible then legal advice will be necessary.

Building operations

The permission of the local authority is needed to put a skip on the road/street. It can impose conditions on signposting and lighting of skips. Building operations themselves on a neighbouring property will only amount to a nuisance if they are excessive or unreasonable. They will not be a nuisance if the offending act is the natural result of reasonable use, for example, demolition producing noise and dust. The question of reasonableness will depend on the timescale of the operations, the methods used and what steps have been used to reduce any annoyance that may be caused. Local authorities can use their powers under s60 of the Control of Pollution Act 1974 to serve a notice imposing requirements on how and when the work should be done. If the operations do amount to a nuisance it may also be possible to get an injunction, and, in some cases, damages.

Business use which is unauthorised

An occupier's rights to conduct a business from home may be affected by planning regulations. This means, for example, that a neighbour will not be able to turn his/her house into a pub overnight. Where planning permission is required, the local authority will ask the neighbours for their views.

If a neighbour is already running a business from home, you should consult the local authority planning department to see if it has given planning permission.

• The police; and/or
• Environmental health officers (if they consider there might be a possible action against the "nuisance"); and/or
• A solicitor (if there might be a case of civil action for abatement of nuisance).

If neighbours, or other passers-by, dump rubbish or waste materials for example, engine oil, on the street this can be reported to the environmental health department.

Changes to property

If someone is proposing changes to a property in a way which adversely affects a neighbour, for example, changing the use of the property to carry on a business, the change may require planning permission or be subject to special restrictions.

CHILDREN

Noisy children in themselves are not a "nuisance". If you are disturbed by a neighbour's children, for example, a shift worker who wants to sleep during the day, the only real solution is a conciliatory approach to the neighbour.

Damage done by children

If a neighbour's child causes damage to property, a conciliatory approach to settle the matter is probably the best solution. Legally, the child can be sued for damages if s/he is old enough to know what s/he was doing. In practice this is unrealistic since, firstly, few courts would look favourably on such an action and, secondly, the child is unlikely to have much money to pay the damages. However, the parents of the child may be liable for negligence and damages if they have trusted the child with something dangerous that was beyond his/her capability to use reasonably, for example, an air gun. The parents may also be liable if they have failed to exercise the control that would be expected of a prudent parent, given the child's age.

A child will not be criminally responsible for her/his action if s/he is under 10 years old. A child aged 10, but under 14 years old is considered in law to be responsible for a criminal offence.

Balls and ball games

If a child throws a ball into a neighbour's property the neighbour should either hand it back or allow it to be collected. However, as it is a trespass for the ball to cross the neighbour's boundary, even if it was unintentional, the neighbour would be entitled to compensation if

LIGHT

A property owner does not have an automatic right to prevent a neighbour blocking his/her light. However, if light has been coming across a neighbour's property for at least 20 years, the present owner generally acquires a right to continue receiving that light. This right is known as "ancient lights" (under the Prescription Act 1832) and applies even in the present owner has lived there for less than the necessary 20 years, and even if the building has been unoccupied for part of that time. Two exceptions to the 20 year rule are that:-

• The right may be enjoyed by consent. This usually means that the owner of the window(s) makes a nominal yearly payment and acquires the right to light immediately

• The title documents may prevent a right of light being acquired. This is quite common in housing estates.

"Ancient lights" only applies to the light coming onto windows in buildings, for example, in a house or greenhouse. It does not apply to light coming onto land such as a garden. For example, if a neighbour's extension prevents a property owner from sunbathing, nothing can be done.

In addition there is not general right to:-

• Privacy, for example, if a neighbour builds an extension which overlooks the property owner's bedroom window; and/or
• Protect the view, for example, if a neighbour's extension blocks the view. It is always possible, however, to object to a neighbour's plans for an extension through the local authority planning procedure.

Unwanted light

Unwanted light from neighbours' floodlights, shop lighting and street lighting cannot be dealt with by statutory legal remedies. It was excluded from the Environmental Protection Act. Disputes about excessive light must be settled by agreement/mediation.

NOISE

Noise from neighbours

Approach the neighbour

The first step, as always, is to attempt to speak to the neighbour making the noise. If the noise is not reduced and the neighbour is a tenant, it may be worth contacting her/his landlord. If the problem persists it is very helpful for you to keep a record/diary of the frequency and type of disturbance which can be used as evidence in any future action.

Local authority action

Under Section 80 of the Environmental Protection Act 1990 (as amended by the Noise and Statutory Nuisance Act 1993), local authorities have extensive powers to deal with noise nuisances. The complainant should ask the Environmental Health Officer (EHO) to come out and investigate the noise.

If the officer considers there is a noise nuisance and has been unable to resolve the matter by discussion, the authority can then serve a notice on the person causing the noise or the owner or occupier of the property. If the person causing the noise does not comply with the notice, the local authority can then prosecute.

The local authority has power to gain entry to property in order to deal with a noise nuisance. This includes access to vehicles, machinery or equipment to deal with vehicle alarms. The Noise Act 1996 came into effect in September 1996 and gave local authorities powers to seize noise making equipment. They can also apply for an injunction.

Private prosecutions

If the local authority is unwilling to take this action you can act by yourself under Section 82 of the Act, by applying to a magistrates court. You can have a solicitor act for you, although this is not necessary.

Civil action

The type of action will depend on how bad the noise is, what is causing it, and whether it is deliberate. Civil action can be expensive and it is wise to seek legal advice. If the case is won, the client may obtain an injunction to stop the nuisance, and/or win damages. Civil action may be taken against the person causing the noise, for example, by a claim for nuisance or harassment, if the action is deliberate.

Contact the Ombudsman

A tenant of a local authority who suffers noise nuisance from a neighbour can contact the Local Government Ombudsman, who may recommend compensation if the local authority failed in one of its duties. Tenants of housing associations and other registered social landlords (and of some private landlords) can contact the Independent Housing Ombudsman in England, or the National Assembly for Wales.

Noise in the Neighbourhood

Neighbourhood noise is covered by the Environmental Protection Act 1990 (EPA) (as amended by the Noise and Statutory Nuisance Act 1993) if it is likely to be a statutory nuisance. This might include, for example, noise from car alarm or music. In the case of vehicle alarms, the local authority has the power to break into the vehicle and silence the alarm if it is creating a nuisance.

A neighbour causing a problem may have a general behavioural problem. If this manifests itself in physical violence or other dangerous behaviour either towards members of her/his family or to neighbours, you may wish to contact the police, social services department or the local NSPCC Officer as appropriate.

If the neighbour appears violent, obviously extreme care should be taken.

REPAIRS/MAINTAINING OF NEIGHBOURING PROPERTY

Disrepair of a property can affect neighbouring property. For example, dry rot may spread from one property to the other, a badly kept house may lower the value of the neighbouring house, or a burst pipe may damage a neighbour's property.

Where the responsibility for repairs is solely the neighbour's you should approach him/her to discuss the repair problem.

Ultimately you can bring an action for damages if the property is adversely affected. The harm suffered must be real and substantial, although sometimes the fear of future damage may be sufficient. Legal advice will be necessary since this area of the law is complex.

TREES

If a neighbour's tree overhangs an adjoining property, this is a form of trespass. In such cases, the tree owner should be asked to trim back the tree. If this is not done you have the right to trim the tree back to the boundary line, although any branches and/or fruit removed belong to the tree's owner and should be returned. There is no precedent for recovering the cost of pruning the tree from the tree's owner, or transporting the branches back to the owner.

Before pruning a neighbour's tree, you should first check whether there is a preservation order. If there is a preservation order the client should obtain consent from the local authority before pruning.

An overhanging tree may also be a danger. For example, most parts of yew trees are poisonous. If any damage or injury is caused the tree owner will be liable to pay compensation if a person affected brings a claim for damages.

If a neighbour's tree is very tall or blocks out light from the client's property you can prune the roots or branches. However you should not reduce the height of the tree without obtaining advice from a solicitor.

Roots

If the roots of a neighbour's tree spreads into property they can be removed using the least damaging method available. If you have to enter the tree owner's property to do this you must give reasonable notice. You may also wish to consult your insurers if there is a possibility that her/his property may be damaged by the roots. If the roots have already caused damage the tree owner is liable to pay compensation but it must be shown that the tree owner knew, or ought to have known, of the danger.

Tree Preservation orders

If you wish to prevent a tree being lopped by neighbours you could contact the local authority to see if it will place a tree preservation order on it. All trees in an area designated as a Conservation Area are automatically protected providing they are not dangerous, dead or causing nuisance.

Dangerous trees

Local authorities have powers to deal with trees on private property which are in a dangerous condition. A local authority can:-

• Make safe any tree if asked to do so by the owner of the land on which the tree stands. The local authority will recover the costs of doing this from the owner, and/or
• Make safe a tree on someone else's land, if asked to do so by a neighbour whose property is threatened by the tree and if the owner of the land on which the tree stands is not known; and/or
• Serve a notice on someone who has a tree in a dangerous condition which is threatening to damage the property of a neighbour if the neighbour asks the local authority to take action. If you want the local authority to take action you should contact the planning or technical services department (this will vary from area to area), which will check the condition of the tree.

The local authority can check the condition of the tree, but does not have to do so. If it does check the tree it does not have to take any further action, but probably will do so if the tree is dangerous.

WEEDS

If weeds are spreading from a neighbour's garden it may be possible to take action for nuisance. However, it would be sensible to approach the neighbour first to see if the problem can be resolved amicably.

HEDGES

If a neighbour's hedge is tall and blocks out light from your property you can prune the roots or branches in the same was as a tree - see above. However, you should not reduce the height of a hedge without obtaining advice from a solicitor. Some hedgerows are protected by law.

Hedgeline can give advice to victims of hedge nuisance who are members of the organisation. There is, however, information on the Hedgeline website. Tel: (only for information about Hedgeline) 02476 388822 Website: hedgeline.org.uk