A few years ago our neighbour erected a garden room/office that runs along our shared boundary fence. However, at one end it overhangs our side of the fence for about 8ft. He never spoke to us before or during about this building. We discovered while on holiday that his builder wanted access to our property in order to put up guttering. We refused as the gutter would be on our property.
Around that time we contacted the planning office and they said that it is a civil matter and nothing to do with them. The guttering is still not up and the rain runs down our side of the fence. Last year we replaced the fences on the other side of the garden but couldn’t complete the job without causing damage to this neighbour’s wooden structure.
Where do we stand in this situation? I would like to complete the guttering without asking him to do it as we are the ones with a problem about it. Could we do this ourselves?
Patrick Shine replies: The situation you describe occurs in many instances where extensions or buildings in back gardens, including the garden room/office type building you refer to, are constructed. Any part of a structure that overhangs a boundary fence is an encroachment on the adjoining property. Such encroachments have property rights implications and are generally either an effort on the part of the property owner concerned to maximise their space and/or poor practice on the part of their designer or contractor.
There are three aspects you need to consider:
(a) The encroachment and the rights that may be created
(b) The actions you may or may not take
(c) Your relationship with your neighbour
In relation to (a), an encroachment on your property should not have happened. Although it occurred without consent, the existence of the roof overhang, for a period of time, may create an easement by prescription, ie a right of use of the space occupied, in favour of your neighbour.
In addition, if in future you refuse your neighbour entry to your property to inspect his building for maintenance purposes he would be entitled to get access if he applies for and is granted a works order by the district court. this applies even if an easement does not exist. The easement and access issues are legal matters and you should seek your solicitor’s advice.
In relation to (b), you are entitled to take reasonable action on your own property to protect your property provided you do not cause damage to your neighbour’s property. However, any alleged damage to the building, if you attach a gutter, may lead to further difficulties. The downpipe arrangement to discharge rainwater would also be an issue but you did not indicate which side of the fence you propose to place it.
In relation to (c), it is advisable to rethink the situation and consider any action you may take in the context of your longer-term relationship with your neighbour. The building is likely to remain in place and any remedial action to resolve both the fence replacement and the rainwater issue is likely to be more to your satisfaction if you avoid the risk of an acrimonious encounter and try to seek your neighbour’s amicable involvement and resolve the issues through co-operation.
The real advantage of this approach is that you will have a reasonable, if not good, longer-term relationship with your neighbour.
Patrick Shine is a chartered geomatics surveyor, a chartered civil engineer and a member of SCSI, scsi.ie
