I have a listed 18th century townhouse in the midlands. My adjoining neighbour enters his period property by vehicle through an arched entrance between both our houses. At the back of this entrance, the original arch beneath my period property remains where my neighbour has put a 4 inch sewer pipe through the springing point of my supporting arch. He got no part declaration and he did not ask me. Am I right to be concerned about this? I am concerned it would interfere with selling the property. Who owns the arch under a flying freehold?
The feature of a shared entrance is very common in Irish towns. A low archway provides access to the rear of attached properties with the dividing boundary wall usually placed centrally just beyond the arched entrance. At the rear of the archway, the owner veered either right or left to enter their own plot. Typically, one property oversailed the archway and had one or two storeys above. The archways usually have gates at the front and most would have a small wicket or pedestrian doorway. The arch itself and walls above would clearly be part of the building it supported and enclosed. Your question is who owns the space in the entry below this upper floor.
No two cases are the same, and the exact position of boundaries can vary considerably. Normally however, the entry will be owned by the property which oversails it. In your case [based on the photograph supplied], it is clear that the alley projects below your property. Your neighbour’s left gable wall however forms the right enclosing wall to the entry, and the outer extremity of this gable wall is likely to be your neighbour’s boundary.
He does however have a right of way across the alley to gain access to his property. Clearly your neighbour is of the opinion that he also has a right to insert a pipe beyond his boundary line. The fact that he has not sought your permission may indicate that he is also unclear as to where the boundary lies.
Legal advice
The wording and extent of any right of way should be reviewed with your legal adviser to establish if this right extends to the insertion of additional pipes. You should appoint a surveyor to liaise with your solicitor to review your title documents. These will define your property and any registered burdens or easements.
The second part of your question relates to the impact of cutting or penetrating the supporting arch itself. You have provided a photograph showing that a new wastepipe extends through the gable wall of your neighbour’s property and projects through the rear wall of the alleyway and penetrates through the rear masonry arch. It appears that this may be just above the structural masonry springer. If one imagines a reasonably sized wedge-shaped cut stone or voussoir, it appears that the pipe may be above this level. The springer and key stones are critical elements of a stone arch and it would be worthwhile having this confirmed on site.
Should your investigation confirm that the alleyway is yours and that the new pipes project beyond your neighbour’s boundary and there is no provision within his right of way which allows this, you have two possible remedies.
Firstly, a suitably worded agreement could be put in place to allow this situation to continue. Alternatively, if you do not wish to allow the creation of an additional burden, you can request that the pipes are removed. It looks as though the pipes could be easily run through the back wall of your neighbour’s house, avoiding the alleyway altogether.
Your first port of call here is your title documents. Your solicitor and local chartered building surveyor should be able to address your concerns with a review of the relevant documents and a site visit to inspect the completed works.
If there is an encroachment and you wish to maintain the status quo, the creation of a licence should address any concerns you may have with regard to selling your property in the future.
Noel Larkin, chartered building surveyor and member of the Society of Chartered Surveyors Ireland, scsi.ie.
