Help!! dealing with trespass gutter, should I go for ADR or direct apply for court injunction?

jjc9

Cut a long story in short: in early 2018 my neighbour built their extension slightly over the general boundary line and installed an external gutter passing our garden abutting our flank wall underneath our eave. This was done without serving Line of Junction Party Wall notice and under our written objection (I suggested they install an internal gutter instead) before their roof and gutter was completed.  The dispute did not get resolved between us. In Sep 2018, we engaged an independent RICS surveyor, hoping for a joint boundary survey to share the findings and the cost. The surveyor’s offer was declined by the neighbour. So we had borne the full cost of the survey and the report was received in June 2019. I quote part of the conclusions from the report as follows:

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It is therefore manifestly the case that the guttering attached to no 5's extension clearly over sails the line demarcated by the concrete edge.

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We therefore conclude that on this basis, any additional physical detailing such as eaves features I guttering has created a potential trespass. Visual evidence further backs this point up as the guttering directly abuts the flank wall of no.3's extension and therefore extends over the logical boundary line (the edge of the concrete drive continued in a straight line).

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Whilst this situation has undoubtedly been the cause of significant concern and contention for both neighbours: a logical and practical resolution is possible. We fully appreciate that had a boxed-gutter  solution been constructed  (when [Removed by Forum Team] highlighted  her concerns about this issue in her email on 22nd Feb 2018) then this issue may have been more easily avoided. This is still an option but would now be much more costly to the owners of no5 to undertake. Another route forward could be to include an easement for no5 's guttering to over sail the land of no 3. Agreement for Lawyers fees to draw this up would need to be established in this instance.

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In August 2019 we found out that at some point between May and August 2019 the neighbour cut down our metal wire fence on the boundary. Because we could not provide video evidence of the action itself, the police filed the incident as a crime of no lines of enquiry in November 2019.

We are not willing to go easement route. After the neighbour cut down our fence we have been living in constant worry that they might further do something similar. What we want is their trespass gutter removed from our land and a definitive boundary line registered. We know little about easement and do not want to have any legal arrangement with the neighbour. The gutter was poorly installed, tilts towards our wall, (because of the small gap of 125mm), and leaks water.

We have written to the neighbour multiple times and copied part of the surveyor’s report to them. We told them if they do not agree with the surveyor’s conclusion they should arrange for their own independent survey. With the neighbour not responding to both, what should we do?

1.       If we go for ADR, is there a specific type of ADR best for our case? Who pays for ADR fee? Are we able to recover our fees for ADR in similar way like if we win a court case?

2.       If we direct apply for court injunction, will the court punish us because we haven’t tried ADR first? How do we apply for court injunction? Can we ask small claims court for injunction to remove trespass or it is another court? Do we need to engage a solicitor?

3.       Are we able to claim compensation from the neighbour for their damage to our fence? We have police reference number and photos showing the site before and after the incident.

Any advice direct or indirect is appreciated.

Many thanks!

Sandtree

There are ADR schemes that focus on property disputes and so its sensible to use one. The whole point of entering into ADR is to get to an agreement and so that can include an agreement on the ADR fee. Given results are more commonly a middle ground compromise its probably better to simply agree that the fee is split evenly given its possible that no side "wins" outright.

You need to show you've made reasonable attempts to settle the matter before court, that doesn't mean you have to have gone to ADR first. It may well be the case that the court pauses the case and suggests you attempt ADR before continuing. As with all cases you simply apply to the courts, the directions hearing will determine if it goes to Small Track, Fast Track or Multi-Track. Small Track (aka small claims court) are able to deal with injunctions but its less clear cut on which track they will determine is appropriate than with a simple cash claim where the small track limit is £10,000. Its up to you if you wish to use a solicitor, if it does go to small track then their costs will be irrecoverable.

Where do fences come into the matter? You potentially can assuming you can evidence they cause the damage and that they are indeed your fences but that sounds like its a separate claim.

anselld

Not happy about bins being pushed a couple of inches over the boundary and touching your wall so you built a pointless and rather ugly green wire fence.   Legally fine but it is going to come across very petty in Court.  Likewise what loss have you suffered from the three inches of airspace the gutter occupies?

Brie

did they have building permission?

JReacher1

That metal fence is ridiculous. 

jjc9

Brie, they do have permission. We contacted the council and they acknowledged trespass but said party wall and trespass is dealt by Court, not by council building control

canaldumidi

I'm no expert, but doesn't mediation require both parties to agree to use it?

Given what you've said about the neighbours, it sounds like they'd refuse to go along with mediation.

I'd go straight to court.

chanz4

got to say what have you actually lost, glad I dont live next door

TripleH

But are the neighbours permitted to cut the wiring from the op's fence?

Just because I don't like a fence my neighbour put up and it stopped me using their property to store my stuff on, doesn't mean I can cut it?

I suspect this is going to turn nasty one way or another, so I see no reason why you exclude the damage to your fence from any claim against your neighbour.

Are you sure you have it in the right place and that you have right of access to go over your neighbour's plot to install it?

caprikid1

Personally I think this will get worse and worse in your mind and cost an incredible amount of money to resolve for literally centimetres.

Tidy it all up and move, if you are getting angry at how they position their bins you are never going to be happy.

Bills of £30,000 plus can be ran up on stuff like this. The next buyer is really not going to care if you had not raised it.

Solicitors, love angry principled people they make a fortune off them.

Slinky

I have to say I'd be concerned about their guttering touching your wall. How on earth could they clear leaf debris for example? Get a build up of that and you'll have problems with a damp wall. There's no easy way of them doing any maintenance.