help with carport dispute please

unhappybunny1 · 23 Jan 2011

We have lived in a house for 4 years. When we bought the house, we thought the neighbours carport was over the boundary between the 2 gardens.
We have been told that because we bought the house with the carport of 25 years over our boundary, we could not ask or force her to move it.
But if she ever took it down, she could not build back to the same place. But would have to go back to the original boundary.
Is this correct???????

mattylad · 23 Jan 2011

Most likely.

hotrod · 24 Jan 2011

I think after 25 years you could be into the realms of "adverse possession", but I'm sure Woody, freddy, et al will be along with a definitive answer when they arise from their pits in the morn.

^woody^ · 24 Jan 2011

It does not seem like an issue of adverse possession, more like the overhanging elements would be an easement - ie the neighbour having gained a right to overhang the boundary line

Normally easements are expressly granted in the property deeds, but can be implied, but in cases like this more likely presumed and is known as a prescriptive easement

If this carport has been there for over 20 years, without the landowners questioning it (but knowing about it) then it may have obtained an easement by prescription, and as the OP states he could not demand its removal, but if it was removed, it could not be put back overhanging the boundary.

Its a complex area of land law, with lots of criteria to be met, so its not always simple to decide if an easement has been granted or not.

If the carport is actually built off the land across the boundary, then it may be that a claim of adverse possession could be made for the actual area of land occupied (as opposed to just overhanging the boundary), and this type of claim can be made after 10 years, but ownership can be disputed - so its not a case of the land automatically being given to the neighbour.

jeds · 24 Jan 2011

You cannot gain adverse possession of airspace - only land. The neighbour does not have possession of the land - only the airspace. Therfore there is no chance of gaining adverse possession.

In cases of overhanging, the courts are only concerned with those that affect use of the land. So the house eaves are a non starter as it does not affect the use of the neighbouring land. If you think the carport is affecting your use of your land (e.g. if you thought you might want to build your own carport and theirs was in the way) then you are entitled to remove the projection to allow your own build.

It would be an interesting scenario if you wanted to put a high sided vehicle like a caravan on to your driveway but couldn't because of your neighbours overhanging carport. In that case you might have a claim but you couldn't just go and cut it down (like you could if you wanted to build a building) you would need an injunction.

You always need to be careful in these situations because courts look very dimly on trivial claims. If the court thinks you are being petty and in fact the carport causes you no real harm you might find yourself winning the case but losing heavily on costs.

hotrod · 25 Jan 2011

Thanks for the clarification Woody / jeds. Useful to know.

unhappybunny1 · 26 Jan 2011

thank u for your replies. I think next door is thinking of removing this carport. I saw some men mesuring up for a new one.
Do u think i should get something in writing from a solicitor to say they can not replace it with the same size, going over the boundary line.
Would it be upto myself to get a legal letter drawn up stating this or could i ask them to prove where there boundary is in writing to us.
Thanks again everyone

wavetrain · 26 Jan 2011

Have you actaully talked to your next door neighbour about your concerns over the overhang?

jwturpin · 27 Jan 2011

try asking at gardenlaw.co.uk, full of specialist legal experts to help you.

jon

^woody^ · 30 Jan 2011

unhappybunny1 said:
Do u think i should get something in writing from a solicitor to say they can not replace it with the same size, going over the boundary line.

No. Just tell them hot to over hang the boundary, and to allow for this now in their measuring.

mattylad · 30 Jan 2011

Best to wait until they have removed the old one too.

That way they cannot decide to leave it there.

UKMICKY · 1 Feb 2011

jwturpin said:
try asking at gardenlaw.co.uk, full of specialist legal experts to help you.

jon

Good website that i often visit.

unhappybunny1

This is generally what you would be told if you came onto the website mentioned.

As you have been told you could due to the party wall act build your own and remove their overhang but also would need to pay to make it good afterwards.

Adverse possession,not a chance but after 25 years of yours or the previous owners acquiesce would mean that a court would most likely grant an equitable licence allowing it to remain. Remove it and the right would most likely go with it but thats something only a court could determine. .

Now a word of warning as to whether or not it is encroaching into your airspace.

Can you prove exactly where the boundary lies, i doubt it.

Have you ever heard of the general boundaries rule which governs the position of boundaries between most residential properties unless they are determined(which 99.99 % of them are not.)

It basically means the boundary could be anywhere until such a time that the boundary has been legally determined.

Dont try using your title plan as it only shows the general position, a thereabout position.

How deep are your pockets,lose a legal battle over something like this and you could end up selling up to pay the court costs.

diynot

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help with carport dispute please

hotrod

hotrod

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