We bought our house last summer and noted that the gutter of our neighbour’s front-garden extension overhangs our garden. At present this isn’t a problem, but we’d like to extend the front of our house too and would need this gutter removed. Do we have rights, given that we bought the house with the overhanging gutter already in situ?
Noel Larkin replies: In my experience, meetings between neighbours about encroachment, whether in relation to hedges, overhanging trees, fences, boundaries, party walls — or, as in this case, an oversailing gutter — should always be carried out in as calm and controlled a manner as possible.
Whatever encourages this, whether it’s a strong cup of tea, a nice slice of apple tart, a healthy dose of Rescue Remedy or other calming tonic, should be administered beforehand. That’s always a good start.
In brief, the situation is this: no work or development should take place beyond one’s legal boundaries without the consent of the adjoining owner. Regrettably, development often happens without consent or without any legal agreement being in place. The oversail essentially creates an easement or right over the neighbouring property. If this oversail is in place for a number of years, an easement by prescription is created.
You should establish whether any form of consent was given by your predecessor in title to allow the current situation to prevail. If consent was given, then there may have been provision for having the work reversed if it interferes with your plans. If no such agreement is in place and the oversail is in place for more than 20 years, matters can become complicated. If this is the case, you should seek legal advice on how the matter can be best resolved.
If the oversail is not that long in existence, an agreement can be put in place retrospectively that will allow the oversail to continue until such time as you need to remove it to extend your own property. Details around flashings and finishes to protect your neighbour’s property can form part of the agreement, or mention can be made that these details are to be agreed between both parties in advance of any work taking place.
As I said above, the most important thing is to talk calmly to your neighbour early on, to avoid unnecessary stress and annoyance. In my experience, most neighbours are quick to acknowledge that an oversail exists and needs to be corrected. They are also agreeable to reversing the encroachment if it interferes with their neighbour’s plans.
The best outcome is to resolve the issue amicably with your new neighbours. Your legal adviser should be able to help in drafting a suitable consent if required, and they should also be able to recommend a chartered building surveyor who can help with the technical details.
Noel Larkin is a chartered building surveyor and a member of the Society of Chartered Surveyors Ireland
