My neighbour has moved a boundary to make room for his extension

I’d like to address an overdue problem regarding the boundary with our neighbour. I believe that, by making changes to an existing garage/garden office, our neighbour has encroached on my property. I would like to know how I can rectify the situation.

By way of background, back in the 1950s a previous neighbour built a concrete-block garage at their garden end with an east-facing window providing light to the interior. The sloping garage roof on our property sits diagonally close to this casement, blocking off a narrow corner portion.

This remained the case until 2016, when a new neighbour made several changes to the garage. These included “fattening” the outside wall of the garage, sealing up the window from the outside and raising his garage roof by several feet, creating an overhang on my property.

I won’t go into all the technical details, but suffice it to say that, after “fattening” the outside wall, in order to achieve a dead-straight appearance, this neighbour removed the dividing railings between our respective properties. As this new partition wall advanced up the garden it effectively overlapped the original boundary.

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I sent two letters to this neighbour asking for an explanation for the removal and the crossover of the boundary but didn’t receive a reply. Under what law can I initiate an effective prosecution to resolve this issue?

There are several issues of concern in the situation you describe, writes Patrick Shine. Without dimensioned drawings, however, a detailed assessment of some of these is open to misinterpretation.

Having said that, the issues generally concern different encroachments. A number of these can be identified and based on these I can provide general advice and an approach that may enable you to deal with the overall situation.

The encroachments, on what I presume is your property, can be considered in two categories. These are 1. an encroachment such as a wall built on your property on a different alignment than the original boundary railings, and 2. the roof overhang. This is an encroachment unless there is a formal agreement for “an easement” in place. However, “easements by prescription” may be created by long use without agreement. Other issues, including the construction of the two garages and the widening of walls are also encroachments if they cross the boundary line between your respective properties.

An encroachment as described in 1 is clearly an infringement on your property. However, it needs to be established when the encroachment was created. If it existed for more than 12 years without interruption or objection, a case for adverse possession may be made by the person in possession of the respective piece of property. Clearly if it was only created in 2016 when the new wall was built, that does not apply. But adverse possession issues are complex and legal advice is necessary.

An easement by prescription, as described in 2, is unlikely to have been created by the roof extension as it is only in place since about 2016, ie less than the 20 years generally required. Therefore, it is likely to be an encroachment on your property.

I suggest that you take the following actions to deal with the issues concerned:

1. Source your deeds, including deed map, the Land Registry folio and its map, if your property is registered, and any relevant evidence including historic photographs.

2. Engage a chartered geomatics surveyor to carry out a survey and prepare a detailed drawing and a report. The key elements of the survey will be the location of the boundary and the building elements you refer to. Your surveyor will need all available evidence, including deed map if available, to define the boundary on the drawing. The Land Registry map is not conclusive in relation to boundary location. However, your surveyor may need to inspect it. If your deeds do not define the boundary in sufficient detail, you will need to point out its location to the surveyor.

3. Seek legal advice and present your solicitor with the surveyor’s drawing, report and photographs, etc. By providing your surveyor with all available information, including dates of various changes, you will enable your surveyor to prepare comprehensive information for your solicitor. Your solicitor will then be in a better position to give you informed legal advice.

The issues described, while numerous, appear to be relatively minor, therefore, your solicitor may suggest efforts to reach some compromise and advise caution in relation to litigation. Removing minor building encroachments may be impractical. Therefore, the outcome of legal proceedings may be uncertain especially if these have been in place for many years.

Patrick Shine is a chartered geomatics surveyor, a chartered civil engineer and a member of the Society of Chartered Surveyors Ireland