If a fence is constructed on the wrong side of a boundary a claim may lie in trespass. However, if you are contemplating bringing such a claim there are a number of matters you should bear in mind.
Where does the boundary lie?
In order to succeed in a claim for trespass you will need to show that the fence has actually been constructed in the wrong place. This is rarely straight forward and you will probably need to seek the assistance of a surveyor who is experienced in determining the position of boundaries.
As a starting point you should check the plan attached to your title deeds as this will show where the boundaries to your property lie. The red line on a title plan shows the position of the boundaries. However, deed plans rarely identify the precise position of boundaries or contain measurements.
If you have a mortgage on your property your deeds will be held with your mortgage lender and they will normally be prepared to release them to a solicitor upon the solicitor providing an undertaking to return them once he or she has finished looking at them. Normally mortgage lenders charge an administrative fee for releasing title deeds.
If your property is registered with the Land Registry, as most properties are these days, you could obtain “office copies” from the Land Registry. The Land Registry may also hold a copy of your title deeds, although this is fairly uncommon – if they do this will be evident from the office copies. The Land Registry charge a fee for providing office copies and for providing copies of any other documents they hold copies of.
If your neighbour’s property is registered with the Land Registry you can also obtain a copy of the office copies relating to their property together with copies of any documents held by the Land Registry referred to in the office copies.
Mistakes in title plans are not uncommon and it is, therefore, possible that the title plan relating to your own property may overlap with that of your neighbour’s property. If you believe that there is a mistake on your title plan you should notify the Land Registry and ask them to rectify it.
For more information on:
- The Court’s approach to boundary disputes
- Disadvantages of court proceedings