Dispute Resolution Department

A common question is whether and what consent needs to be given to neighbouring landowners wishing to build a fence, wall or other structure near to or on the boundary between two Properties or pieces of land.

Can access be refused?

In the first instance, a land owner is obliged to allow a neighbouring property owner or occupier access to their land to allow for repair and maintenance of their property.  However this does not include construction, improvement or erection of any new structure such as an extension, shed or garage.  In that case access can often be denied and the neighbour left to find another route.

Who owns any fence, wall or structure which runs along the boundary?

Unless the title plan or deed has been prepared by a qualified surveyor with exact measurements marked, the title plans held at the Land Registry (if the land is registered) or contained within the title deeds (in the case or unregistered land), are merely a guide as to the position of the boundary.  

The actual boundary will be assessed with reference to any physical markers and in older properties where markers may have moved or been obscured though time or in larger rural land or estates, this can be difficult to establish.

Many title deeds or land registry title documents do not adequately define the boundary or ownership of a boundary structure such as a wall or fence ownership, with many landowners having to prove or rely upon evidence as to the placement of a boundary structure or who built or traditionally maintained this.  In addition buildings or structures may straddle the boundary, in which case they are known as “Party Walls” with ownership being shared equally with a notional divide applied through the middle of the structure.

Before commencing any works advice should be sought, and where-ever possible any neighbouring land or property owner consulted or advised of the intended works and agreement reached.  In many instances neighbour and boundary disputes can be avoided or the impact minimised with clear communication.

Can neighbouring land owners build up to or on the boundary?

Unless there is some restriction in either your or their title deeds then a neighbour cannot ordinarily prevent specific works from being carried out.  However in doing so you or they must comply with the rules and regulations set out in the Party Wall Act 1996.  Examples of the type of works include:

• Building a new party wall or a wall (which can include other structures) on or adjacent to the boundary;
• Carrying out works or alterations to any existing Party Wall;
• Building within three or six meters’ distance from any neighbouring land or property owner’s walls or buildings, depending upon the depth of any excavation works
• Putting in specified types of foundations on the neighbouring property or land.
•  Works to share floors or ceilings, for example between two flats or apartments.

Before commencing any works, notice within a specified time and Form must be served on the adjacent land or property owner (which may not always be the occupier) detailing the works and time this will be commenced, with compensation being provided for damage caused by the works and payment for all expenses relating to the works.  

Upon receipt of the specified notice, and within a set period of time, an adjoining landowner can raise a dispute or serve a counter notice seeking to resolve any practical difficulties or disagreements: such as demands for additional works such as stronger or deeper foundations or underpinning.  This will trigger a mechanism requiring an award setting out in detail the rights and obligations of both parties throughout the building works.

In the absence or a counter notice or dispute, it is assumed that the neighbouring land owner agrees to the terms of the original notice.

A failure to comply with the Party Wall Act can open a party up to a claim for trespass or nuisance, or lost opportunity to seek an award and when contemplating carrying out any works or upon receipt of a notice it is imperative that legal advice is sought.  

 At Elliot Mather we will work closely with many surveyors to minimise and resolve any disputes and assist in helping the building project run smoothly.

In the event that any works fall outside the Party Wall Act regime, we can also provide sensible and cost effective advice in order to minimise any disputes, including through negotiation, mediation and round the table discussion and if necessary court proceedings.