Property

Our neighbour says he has permission to build on our boundary wall. Can he?

He has also cut some of my patio to connect to my sewer pipe, without permission

The situation is not as straightforward as your neighbour suggests. Photograph: iStock

Tue Sep 22 2020 - 06:00

Can a neighbour use a boundary wall as part of his extension? He has planning permission for a two-storey extension because, he says, there was a previous extension that had used the boundary wall. We only moved into our house four years ago. He says the previous extension was there for 40 years, so that gives him the right to build his new extension.

We have at no time given him permission to use the boundary wall for his extension. He has also cut some of my patio to make a new connection to my sewer pipe, again without permission. What do you think and what can I do?

Patrick Shine replies: The situation relating to what appears to be a party wall is not as straightforward as your neighbour suggests. I am assuming that the boundary wall is a party wall shared by both of you. This means that the legal boundary between your properties is located along the centre of the wall and that both parties have a shared interest in the entire wall as a boundary wall.

To have a previous extension that was supported by the party wall, your neighbour is likely to have had an easement for support on your property – that is, your part of the wall. This easement extended over the corresponding space directly above your part of the wall, which would have been occupied by part of his claimed extension.

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Easements are usually agreed in advance between the respective parties. It is not clear how he would have acquired this easement, whether by agreement or by prescription (long use without formal agreement). The use of any part of your property, including your part of the wall, without an easement is a trespass on your property.

There are a number of factors you need to consider:

(a) The previous extension has not existed for several years, therefore the easement may no longer exist.

(b) There is no assurance that a foundation and wall designed and constructed as a party wall is structurally capable of supporting a two-storey extension to a house. A two-storey extension has implications for the stability of the party wall in which you have shared ownership, and for any extension you may wish to build in the future; see also (g) below.

(c) If the proposed two-storey extension is larger than the claimed previous extension, there is no easement in place for the additional dimension(s) without your agreement.

(d) The application for planning permission contains a question on ownership and a request that the applicant provides evidence of the consent of adjoining property owners if the proposed development extends on to their lands. This requirement does not appear to have been complied with, as you did not give consent. This applies irrespective of whether or not there was a previous easement.

It is important for you to note that irrespective of how your neighbour responded to this question in relation to adjoining property, the grant of planning permission does not permit him to trespass on, or build on, or over, any part of your property, including your part of the wall, without your consent. You have over-riding rights in relation to your own property.

(e) When you purchased your house four years ago, your solicitor would have requested the vendor’s solicitor to provide a standard document called Objections and Requisitions on Title. This document comprises a comprehensive list of queries covering various categories of liabilities, disputes and burdens affecting a property that the prospective purchaser should know about prior to purchase. Question 3.2.a. asks about “any other easement” on the property. Your solicitor would have informed you if an easement was declared. It is therefore unlikely that an easement was declared.

(f) If the two-storey extension is constructed, the maintenance of the wall on your side, especially if painted, will be an issue. Your neighbour, or his contractor, will need to enter your property for maintenance work. If you refuse access, he may get a District Court order under sections 43 to 47 of the Land and Conveyancing Law Reform Act 2009 to enter for maintenance and related purposes. There would be insurance implications.

(g) If the two-storey extension is constructed, it may compromise or limit the dimensions of an extension you may wish to build in the future, unless you can reach a legal agreement with your neighbour on mutual easements that permit both of you to use the wall, or a new loadbearing wall if required. Such a legal agreement would allow your neighbour to proceed with his extension and you to have an equal right to use the wall to support an extension in the future. The agreement should provide for a capped parapet extension wall rather than a roof overhang on your property.

In relation to (a), the existence or otherwise of a previous easement is complex. Your solicitor may need some background information in relation to the previous extension, including when it was removed, in order to be able to advise you if an easement existed, and if it still exists or has expired.

In relation to (b), you need your neighbour to provide you with a building surveyor’s or engineer’s report on the suitability of the party wall to support a two-storey extension, and a possible future extension on your property.

In relation to (c) and (d), you should, as soon as possible, check the planning office file for: (i), the height and length of the proposed extension wall that would be supported by your shared wall; (ii) any proposed roof and/or eaves projections (overhangs) into your property; and (iii) the planning application form to confirm if the planning office was misled in relation to the ownership of the entire property which was the subject of the planning application.

In relation to (e), (f) and (g), your solicitor will advise you further in relation to these issues.

Your neighbour trespassed on your property when he entered it and cut your patio area to make a drain connection. Irrespective of whether or not the connection was reasonable in the context of the design layout of the drainage system, his actions in trespassing, and damage, were unacceptable.

However, in any boundary-related issue, it is advisable to maintain good relationships with neighbours if at all possible. Try to find some compromise and not let the issue escalate to a dispute, as disputes have lasting unpleasant consequences.

In your situation, you should immediately find as much information as possible in relation to the extent of the claimed previous extension and the relevant information on the planning office file. Consider the factors as set out above and consult your solicitor with a view to reaching some agreement or compromise.

Patrick Shine is a chartered geomatics surveyor, a chartered civil engineer and a member of SCSI, scsi.ie

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