Insight 8 | The Law of The Land
Buying a home is all about nest building, having a little place of solace to retreat to after a day’s slog and designing the perfect kitchen to cook in. But we often forget, as we’re imagining concrete worktops, wood floors and the Farrow & Ball painted hallway, that we may need to know about things called easements, or that boiler flues can commit trespass, or that party walls aren’t something to do with mirrored tiles. And as for flying freeholds! Don’t get me started on them.
Unless you are among the 0.4% of the population with a law degree, having to decipher a deed of covenant may induce heart palpitations or the need for a lie down in a dark room.
Never fear, Mr Clarke is here to answer a few of the questions he has been asked over the years.
1 I think the wall between my property and my neighbour’s is in disrepair, but he says there is not a problem. What can I do?
If the wall is wholly within one property, that owner must maintain it at their own cost. If it sits astride the boundary, it is deemed to be a party fence wall. In this case, you can carry out the necessary repairs provided you give two months’ written notice or obtain prior written consent from the adjoining owner; the cost should be split between you. If works are needed urgently, you could seek an injunction or undertake temporary work to protect your land, and claim the costs if your neighbour is at fault.
2 I moved into my house less than a year ago and have found Japanese knotweed in the garden. It wasn’t mentioned in the HomeBuyer’s Report. What can I do?
Japanese knotweed is such a pervasive problem that the HomeBuyer’s Report asks sellers to assert categorically that there is none on the property. If the seller knowingly lies, this can form the basis of a claim of misrepresentation. Problems arise if the new owner doesn’t notice the knotweed for a year or two. The previous owner could argue that it spread from a neighbouring garden, or that the new owner introduced it themselves. It can cost up to £10,000 to get rid of the weed, so resorting to a claim, although costly, may be the only option.
3 My neighbour recently started a business from home, and clients’ cars are causing parking problems. Can I do anything?
If your neighbour’s business is causing parking problems or noise, or is introducing imposing signage on a quiet residential street, they will need permission for a change of use. In a residential area, there will often be a restrictive covenant in the deed prohibiting commercial use. Act quickly if you want to object: if the business has been there for more than 10 years, the council may not be able to act.
4 Rain from my neighbour’s roof discharges via a downpipe and flows onto my property. I am worried that it is making our external wall damp. What can I do?
A landowner must ensure that water collected on his property does not cause damage when released. There should be sufficient drainage, and runoff should be diverted away from the boundary. If the water has damaged your building, you may be entitled to sue your neighbour for the cost. To prevent further damage, you could apply for an injunction against your neighbour, although it may be cheaper to install drainage yourself and claim for this cost.
5 My neighbour has let his trees grow so tall that they are blocking the once fabulous view I had. What are my rights?
Unfortunately, there is no such thing as a right to a view. You may be able to reach an agreement, and if a tree overhangs your property, you can cut it back to the boundary. There is also an ancient easement known as the right to light, which can protect a property’s access to natural light across neighbouring land (lawcommission.justice.gov.uk/ areas/rights-to-light.htm).
Having a tip top lawyer work with you when buying or selling is my top tip! We know lots of great firms so if you would like us to recommend anyone then just ask.
(Don’t use this advice as fact. Seek the advice of a lawyer before using it in a court of law).