My question is this: there is a 1.5ft (45cm) gap between my garage and my neighbours’. They’ve just put a fence down the middle, which means I cannot get through to do any repairs or clean the outside wall of my garage. Is this legal? Shouldn’t the fence begin at the end of each garage with the middle left free so either one of us can gain access and to carry out repairs?
Patrick Shine writes: I assume from your description that the accepted legal boundary line between both properties is located along the centre of this 1.5 ft (45cm) space and that your neighbours positioned the fence on this previously-unmarked boundary line.
Your neighbours are not entitled to erect what is effectively a party fence, ie a fence on or straddling the boundary line, without your consent. In usual circumstances your neighbours would be entitled to erect a boundary fence or wall provided it is entirely on their side of the boundary line.
However, in this situation, one or both parties may have acquired an easement by prescription, ie by long use, in the form of a wayleave for maintenance, if you have been using the space accordingly for a minimum of 20 years. In such instance the easement in your favour exists on your neighbours’ part of the space and your neighbours’ easement is on your part. Irrespective of whether you have been using the space for maintenance for more than 20 years, or less than 20 years, you should ask your solicitor to advise on the nature of the wayleave or any rights that you may have established.
The foregoing are some of the factors to be considered if you were to adopt a formal approach to resolving the issue and if litigation were to ensue.
However, it is strongly advisable to adopt a conciliatory approach and to try to reach an amicable solution. Adopting an adversarial approach may lead to an escalation of tensions and result in your neighbours’ attitude becoming entrenched and unco-operative. This raises the likelihood of litigation as it may then appear to be the only route to a resolution. Litigation should be avoided, if at all possible. It is stressful, costly, has an uncertain outcome and would irrevocably damage relationships with your neighbour.
Your best approach is to recognise that a property owner’s desire to have a fence around their boundaries is reasonable and that a desire to have access for maintenance is also reasonable and makes sense. However, in this instance these two options are not compatible and some compromise should be agreed.
You should approach your neighbours, explain your concerns and explain the mutual advantages of retaining the space as an accessible area. You should ask them for suggestions so that the solution will be inclusive and a joint effort. In order to meet their desire for a boundary fence you could suggest a low, permanent fence about 0.5m in height or a removable panelled or wire mesh fence or some combination of these. Such fences would need to extend for about 0.5m beyond the garages at each end.
If you reach agreement on retaining mutual access you should get legal advice in relation to registering your respective wayleaves. If they are still deemed to be wayleaves by prescription, an application for registration will, under recent legislation, need to be made before December 1st, 2021. Your solicitor will explain the significance of this deadline.
Patrick Shine is a chartered geomatics surveyor, a chartered civil engineer and a member of SCSI. scsi.ie
