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

caprikid1

Slinky said:

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.

This is always the problems with the lack of space in the UK, everyone wants to build up to their boundary then hang their gutters over their neighbours, with extensions it always appears to be snooze you lose.

Slinky

caprikid1 said:

Slinky said:

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.

This is always the problems with the lack of space in the UK, everyone wants to build up to their boundary then hang their gutters over their neighbours, with extensions it always appears to be snooze you lose.

The extension on our house is right up to the boundary but the gutters are at the back (flat roof). I think our neighbour was pleased when we bought the house as literally the first thing we did was have the vent from a horrible old gas fire that was venting into the neighbour's airspace removed. This must have been agreed by previous owners of both properties.

jjc9

I started the thread as I am not sure which legal route is best of our options. Our request is for the trespass gutter to be removed from our land (replaced with boxed gutter). As it is asking for a court injunction instead of claiming money, I am not sure which court I apply to, small claims court or another? The fence issue should be a separate one.

Completely agree that you need to show you've made reasonable attempts to settle the matter before court. We have done all we could in gathering evidence and independent survey. We don’t agree one can, without serving party wall notice and permission, overhang their entire gutter on neighbour’s land. We insist the trespass gutter being replaced. What else we can do which would be helpful to win a judge’s discretionary decision?

jjc9

Slinky said:

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.

Because of the small gap between the walls, the gutter was poorly installed. It tilts towards our wall, leaks water and causes damp problem. This is a supporting reason why the gutter needs to be replaced. 

Bendy_House

The sheer presumption and arrogance of neighbours like this makes me squirm. Selfish & inconsiderate, they take advantage of the fact that other folk are more decent than they are, so effectively 'punish' normal, thoughtful people. Yuck.

Jjc9, do you have Legal Protection on your house insurance?

I don't have a definitive answer on how to deal with this, but I understand that, with legal action, especially LP, it can usually/often make it an  'easier' or stronger case if you are in the position of 'defendant' rather than plaintiff. If I'm right about this - but it seems largely anecdotal - then I guess it must be because, for relatively 'minor' infringements, the solicitor (and ultimately, the adjudicator) will be wondering whether it was worth making it 'legal', and will often be looking for a 'compromise', whereas when it comes to defending a case brought against you, then you/they have little option BUT to defend it. Something like that. It's easier to respond to an action, that to start it.

So, is there a way to turn the tables so that THEY have to take any action against you, and not the other way around? Or that you can take instant action against a future action by them, rather than look back on something that happened 2 years ago? I think so. But you (possibly following advice from your LP) need to judge this.

The thought of now TAKING legal action against the neighb to FORCE them to remove this guttering would scare me. At least it would if my LP wouldn't take it on for me. So, would I risk it? Not sure I would. So...

What I think I'd do is to write the neighb a letter, outlining unemotively, ALL the facts around this guttering and what they have done, and giving them 2 weeks to remove it - give a specific date. You conclude with, 'if it is not removed and a proper rainwater collecting solution arrived at, I will be forced to take further action', but you don't specify what action this is.

Then list ALL the reasons why their actions are unacceptable;

1) they are trespassing on your land. This is NOT a minor issue in any sense, as it could - almost certainly will - compromise any future sale of your property. It'll also cause an unresolved 'dispute' which both parties will need to declare.

2) they KNEW in ADVANCE not only that their intended guttering design would involve trespass, but also would be compromised in its operation due to the lack of access space. You can demonstrate this by (a) it was just bleedin' obvious it would be, given the gap is - what? - 5" max?, and (b) you TOLD them before they built it that it would be, and even suggested the CORRECT alternative gutter design they should be using. Which they ignored. (If you can, present/include the wording on the letter you gave them at the time, or refer to a copy you attach. The fact you told them this in advance is a BIGGIE.).

3) due to the lack of access, the gutter hasn't been, and cannot be, installed correctly. The resulting twist in the gutter will make it far more likely that it'll overflow down your wall, causing damp issues and algae growth. This is almost inevitable. It almost certainly WILL happen. This situation is obviously completely unacceptable, and you are now 'putting them on  notice' that they will be directly liable for any damage caused, and any repair work required. (Take end-on, close-up photos to show any slope or sag in the guttering. Count how many clips have been using, their spacing, etc. EVIDENCE EVERYTHING!)

4) due to the lack of access, the regular maintenance that all guttering requires is seriously compromised. Even the removal of leaves and debris will be awkward, and - again - this could lead to damp on the wall that simply would not occur had the correct guttering solution been undertaken in the first place. Any leaves landing across the tiny gap between the guttering and your wall will also act as a damp reservoir and bridge = algae growth and possible damp penetration.

Sum up: not only is this trespass - unacceptable in itself - but it is such a compromised design that it is highly unlikely to perform as it should, is difficult to access for regular maintenance, and your property could easily be damaged as a result - for which they will be liable. You informed them, IN ADVANCE, of this issue, and suggested the correct solution. You can only speculate why they continued with the cheaper external guttering, but they should realise the full consequences of this poor decision beyond the legalities and potential damage that could result; such inconsiderate behaviour could regrettably permanently damage the good neighbourly relations we should all be striving for, and also cause problems for both parties when they come to sell. You have not, and will not, give them permission for this trespass, so it'll be a permanent bone of contention between the occupants of the two houses for the foreseeable future.

I therefore give notice that I require you to remove the trespassing guttering, and undertake to replace it with a more suitable solution by the xth of August, or I will be obliged to take further action'.

When that date comes, wait until they are out, remove the length of gutter by simply pulling it out sideways, leave it on their land where they'll see it, and reinstate that end board to make it hard for them to replace it. You may also need a CCTV camera to cover just that area. 

They cannot replace it without further trespass, in which case you don't wait two years, but act instantly - and record you telling them "to get off my land NOW - you do not have my permission." 

Yes, it's a risky move - they might just ignore it and leave the guttering off, in which case you may need to wait until a good shower, and photograph the resulting torrent going down your wall, and then take legal action.

Any claim that this was a result of YOUR actions needs to be countered will 'I believed I had NO CHOICE but to force this issue, after having given them ample notice to resolve it correctly themselves. The combination of their incorrect choice of rainwater collection method, coupled with its poor installation (ie, little/no gap between the gutter edge and your wall, and the lack of gutter support due to access problems), would almost certainly have caused it to fail to perform correctly, so my choice was either to monitor the situation on a ~weekly basis and wait until damage was caused to my property, and then take action to claim damages, or to put them on notice that they needed to sort it now to prevent damage, and I gave them a reasonable 2 weeks in order to indicate that they would. I am also keenly aware that prolonged delay could make this a fait-accompli, so knew I had to press the issue. They didn't respond in a satisfactory manner, so I was left with the situation that my house wall would almost certainly suffer as a result, as well as the endless legal issues which can be caused by a trespass dispute.

By removing the guttering, I was returning to them their property, which they placed on my land without my permission; in fact I had - at the time of the build - expressly told them not to fit their guttering on my land, and informed them of the correct method. They proceeded to trespass and install the incorrect system, in the almost certain knowledge that it couldn't function as well as it should, and could almost certainly cause damage to my home over time. I made my neighbour aware of all this.

Since they refused/failed to sort out the trespass and inadequate rainwater collection they are responsible for, I had a simple choice of (a) waiting and monitoring my house wall on every occasion it rains in anticipation of water damage being caused, or (b) putting my neighbour 'on notice' that they needed to resolve their poor decision NOW rather than wait for actual damage to occur.

Give it some thought...!

Doozergirl

caprikid1 said:

Slinky said:

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.

This is always the problems with the lack of space in the UK, everyone wants to build up to their boundary then hang their gutters over their neighbours, with extensions it always appears to be snooze you lose.

It's why I keep banging on about the first people to build needing to build a party wall.  Otherwise you're just inviting this very situation.  

Either build well away from the boundary or build over it.   

m0bov

Do you have legal on your insurance? I think you know the answer, you need to go full legal. A Sol's letter might do they job, if you accept it, it will likely causes issues later on down the line with damaged brick work, damp etc. They might also do other works thinking they got away with it. Its the "I'll do what I want" attitude that gets to me, no respect or anything. Its the same with parking, noise etc...

If it where me, I'd go full legal.

jjc9

Bendy_House said:

The sheer presumption and arrogance of neighbours like this makes me squirm. Selfish & inconsiderate, they take advantage of the fact that other folk are more decent than they are, so effectively 'punish' normal, thoughtful people. Yuck.

Jjc9, do you have Legal Protection on your house insurance?

I don't have a definitive answer on how to deal with this, but I understand that, with legal action, especially LP, it can usually/often make it an  'easier' or stronger case if you are in the position of 'defendant' rather than plaintiff. If I'm right about this - but it seems largely anecdotal - then I guess it must be because, for relatively 'minor' infringements, the solicitor (and ultimately, the adjudicator) will be wondering whether it was worth making it 'legal', and will often be looking for a 'compromise', whereas when it comes to defending a case brought against you, then you/they have little option BUT to defend it. Something like that. It's easier to respond to an action, that to start it.

So, is there a way to turn the tables so that THEY have to take any action against you, and not the other way around? Or that you can take instant action against a future action by them, rather than look back on something that happened 2 years ago? I think so. But you (possibly following advice from your LP) need to judge this.

The thought of now TAKING legal action against the neighb to FORCE them to remove this guttering would scare me. At least it would if my LP wouldn't take it on for me. So, would I risk it? Not sure I would. So...

What I think I'd do is to write the neighb a letter, outlining unemotively, ALL the facts around this guttering and what they have done, and giving them 2 weeks to remove it - give a specific date. You conclude with, 'if it is not removed and a proper rainwater collecting solution arrived at, I will be forced to take further action', but you don't specify what action this is.

Then list ALL the reasons why their actions are unacceptable;

1) they are trespassing on your land. This is NOT a minor issue in any sense, as it could - almost certainly will - compromise any future sale of your property. It'll also cause an unresolved 'dispute' which both parties will need to declare.

2) they KNEW in ADVANCE not only that their intended guttering design would involve trespass, but also would be compromised in its operation due to the lack of access space. You can demonstrate this by (a) it was just bleedin' obvious it would be, given the gap is - what? - 5" max?, and (b) you TOLD them before they built it that it would be, and even suggested the CORRECT alternative gutter design they should be using. Which they ignored. (If you can, present/include the wording on the letter you gave them at the time, or refer to a copy you attach. The fact you told them this in advance is a BIGGIE.).

3) due to the lack of access, the gutter hasn't been, and cannot be, installed correctly. The resulting twist in the gutter will make it far more likely that it'll overflow down your wall, causing damp issues and algae growth. This is almost inevitable. It almost certainly WILL happen. This situation is obviously completely unacceptable, and you are now 'putting them on  notice' that they will be directly liable for any damage caused, and any repair work required. (Take end-on, close-up photos to show any slope or sag in the guttering. Count how many clips have been using, their spacing, etc. EVIDENCE EVERYTHING!)

4) due to the lack of access, the regular maintenance that all guttering requires is seriously compromised. Even the removal of leaves and debris will be awkward, and - again - this could lead to damp on the wall that simply would not occur had the correct guttering solution been undertaken in the first place. Any leaves landing across the tiny gap between the guttering and your wall will also act as a damp reservoir and bridge = algae growth and possible damp penetration.

Sum up: not only is this trespass - unacceptable in itself - but it is such a compromised design that it is highly unlikely to perform as it should, is difficult to access for regular maintenance, and your property could easily be damaged as a result - for which they will be liable. You informed them, IN ADVANCE, of this issue, and suggested the correct solution. You can only speculate why they continued with the cheaper external guttering, but they should realise the full consequences of this poor decision beyond the legalities and potential damage that could result; such inconsiderate behaviour could regrettably permanently damage the good neighbourly relations we should all be striving for, and also cause problems for both parties when they come to sell. You have not, and will not, give them permission for this trespass, so it'll be a permanent bone of contention between the occupants of the two houses for the foreseeable future.

I therefore give notice that I require you to remove the trespassing guttering, and undertake to replace it with a more suitable solution by the xth of August, or I will be obliged to take further action'.

When that date comes, wait until they are out, remove the length of gutter by simply pulling it out sideways, leave it on their land where they'll see it, and reinstate that end board to make it hard for them to replace it. You may also need a CCTV camera to cover just that area. 

They cannot replace it without further trespass, in which case you don't wait two years, but act instantly - and record you telling them "to get off my land NOW - you do not have my permission." 

Yes, it's a risky move - they might just ignore it and leave the guttering off, in which case you may need to wait until a good shower, and photograph the resulting torrent going down your wall, and then take legal action.

Any claim that this was a result of YOUR actions needs to be countered will 'I believed I had NO CHOICE but to force this issue, after having given them ample notice to resolve it correctly themselves. The combination of their incorrect choice of rainwater collection method, coupled with its poor installation (ie, little/no gap between the gutter edge and your wall, and the lack of gutter support due to access problems), would almost certainly have caused it to fail to perform correctly, so my choice was either to monitor the situation on a ~weekly basis and wait until damage was caused to my property, and then take action to claim damages, or to put them on notice that they needed to sort it now to prevent damage, and I gave them a reasonable 2 weeks in order to indicate that they would. I am also keenly aware that prolonged delay could make this a fait-accompli, so knew I had to press the issue. They didn't respond in a satisfactory manner, so I was left with the situation that my house wall would almost certainly suffer as a result, as well as the endless legal issues which can be caused by a trespass dispute.

By removing the guttering, I was returning to them their property, which they placed on my land without my permission; in fact I had - at the time of the build - expressly told them not to fit their guttering on my land, and informed them of the correct method. They proceeded to trespass and install the incorrect system, in the almost certain knowledge that it couldn't function as well as it should, and could almost certainly cause damage to my home over time. I made my neighbour aware of all this.

Since they refused/failed to sort out the trespass and inadequate rainwater collection they are responsible for, I had a simple choice of (a) waiting and monitoring my house wall on every occasion it rains in anticipation of water damage being caused, or (b) putting my neighbour 'on notice' that they needed to resolve their poor decision NOW rather than wait for actual damage to occur.

Give it some thought...!

Appreciating your understanding and long writing. We did all you suggested including writing to them and presenting videos showing the gutter’s leaking, apart from taking forceful action to remove the gutter ourselves. We are very cautious about this point.

You are very right about the LP part. I do have LP and I did approach LP in 2018, but I had to go with the solicitors they chose and the solicitors weren’t specialised/interested in “minor” infringement for their cost. I would argue: for a gutter trespass like in this case, how major can it be? Does that mean everyone can hang their gutter on neighbour’s land because 5” will never be major?

Being considerate to others and for our own wellbeing, we paused our discussions during the pandemic. Now the situation is getting us into more anxiety.

jjc9

m0bov said:

Do you have legal on your insurance? I think you know the answer, you need to go full legal. A Sol's letter might do they job, if you accept it, it will likely causes issues later on down the line with damaged brick work, damp etc. They might also do other works thinking they got away with it. Its the "I'll do what I want" attitude that gets to me, no respect or anything. Its the same with parking, noise etc...

If it where me, I'd go full legal.

The LP part is as my post above

Bendy_House

jjc9 said:

Bendy_House said:

The sheer presumption and arrogance of neighbours like this makes me squirm. Selfish & inconsiderate, they take advantage of the fact that other folk are more decent than they are, so effectively 'punish' normal, thoughtful people. Yuck.

Jjc9, do you have Legal Protection on your house insurance?

I don't have a definitive answer on how to deal with this, but I understand that, with legal action, especially LP, it can usually/often make it an  'easier' or stronger case if you are in the position of 'defendant' rather than plaintiff. If I'm right about this - but it seems largely anecdotal - then I guess it must be because, for relatively 'minor' infringements, the solicitor (and ultimately, the adjudicator) will be wondering whether it was worth making it 'legal', and will often be looking for a 'compromise', whereas when it comes to defending a case brought against you, then you/they have little option BUT to defend it. Something like that. It's easier to respond to an action, that to start it.

So, is there a way to turn the tables so that THEY have to take any action against you, and not the other way around? Or that you can take instant action against a future action by them, rather than look back on something that happened 2 years ago? I think so. But you (possibly following advice from your LP) need to judge this.

The thought of now TAKING legal action against the neighb to FORCE them to remove this guttering would scare me. At least it would if my LP wouldn't take it on for me. So, would I risk it? Not sure I would. So...

What I think I'd do is to write the neighb a letter, outlining unemotively, ALL the facts around this guttering and what they have done, and giving them 2 weeks to remove it - give a specific date. You conclude with, 'if it is not removed and a proper rainwater collecting solution arrived at, I will be forced to take further action', but you don't specify what action this is.

Then list ALL the reasons why their actions are unacceptable;

1) they are trespassing on your land. This is NOT a minor issue in any sense, as it could - almost certainly will - compromise any future sale of your property. It'll also cause an unresolved 'dispute' which both parties will need to declare.

2) they KNEW in ADVANCE not only that their intended guttering design would involve trespass, but also would be compromised in its operation due to the lack of access space. You can demonstrate this by (a) it was just bleedin' obvious it would be, given the gap is - what? - 5" max?, and (b) you TOLD them before they built it that it would be, and even suggested the CORRECT alternative gutter design they should be using. Which they ignored. (If you can, present/include the wording on the letter you gave them at the time, or refer to a copy you attach. The fact you told them this in advance is a BIGGIE.).

3) due to the lack of access, the gutter hasn't been, and cannot be, installed correctly. The resulting twist in the gutter will make it far more likely that it'll overflow down your wall, causing damp issues and algae growth. This is almost inevitable. It almost certainly WILL happen. This situation is obviously completely unacceptable, and you are now 'putting them on  notice' that they will be directly liable for any damage caused, and any repair work required. (Take end-on, close-up photos to show any slope or sag in the guttering. Count how many clips have been using, their spacing, etc. EVIDENCE EVERYTHING!)

4) due to the lack of access, the regular maintenance that all guttering requires is seriously compromised. Even the removal of leaves and debris will be awkward, and - again - this could lead to damp on the wall that simply would not occur had the correct guttering solution been undertaken in the first place. Any leaves landing across the tiny gap between the guttering and your wall will also act as a damp reservoir and bridge = algae growth and possible damp penetration.

Sum up: not only is this trespass - unacceptable in itself - but it is such a compromised design that it is highly unlikely to perform as it should, is difficult to access for regular maintenance, and your property could easily be damaged as a result - for which they will be liable. You informed them, IN ADVANCE, of this issue, and suggested the correct solution. You can only speculate why they continued with the cheaper external guttering, but they should realise the full consequences of this poor decision beyond the legalities and potential damage that could result; such inconsiderate behaviour could regrettably permanently damage the good neighbourly relations we should all be striving for, and also cause problems for both parties when they come to sell. You have not, and will not, give them permission for this trespass, so it'll be a permanent bone of contention between the occupants of the two houses for the foreseeable future.

I therefore give notice that I require you to remove the trespassing guttering, and undertake to replace it with a more suitable solution by the xth of August, or I will be obliged to take further action'.

When that date comes, wait until they are out, remove the length of gutter by simply pulling it out sideways, leave it on their land where they'll see it, and reinstate that end board to make it hard for them to replace it. You may also need a CCTV camera to cover just that area. 

They cannot replace it without further trespass, in which case you don't wait two years, but act instantly - and record you telling them "to get off my land NOW - you do not have my permission." 

Yes, it's a risky move - they might just ignore it and leave the guttering off, in which case you may need to wait until a good shower, and photograph the resulting torrent going down your wall, and then take legal action.

Any claim that this was a result of YOUR actions needs to be countered will 'I believed I had NO CHOICE but to force this issue, after having given them ample notice to resolve it correctly themselves. The combination of their incorrect choice of rainwater collection method, coupled with its poor installation (ie, little/no gap between the gutter edge and your wall, and the lack of gutter support due to access problems), would almost certainly have caused it to fail to perform correctly, so my choice was either to monitor the situation on a ~weekly basis and wait until damage was caused to my property, and then take action to claim damages, or to put them on notice that they needed to sort it now to prevent damage, and I gave them a reasonable 2 weeks in order to indicate that they would. I am also keenly aware that prolonged delay could make this a fait-accompli, so knew I had to press the issue. They didn't respond in a satisfactory manner, so I was left with the situation that my house wall would almost certainly suffer as a result, as well as the endless legal issues which can be caused by a trespass dispute.

By removing the guttering, I was returning to them their property, which they placed on my land without my permission; in fact I had - at the time of the build - expressly told them not to fit their guttering on my land, and informed them of the correct method. They proceeded to trespass and install the incorrect system, in the almost certain knowledge that it couldn't function as well as it should, and could almost certainly cause damage to my home over time. I made my neighbour aware of all this.

Since they refused/failed to sort out the trespass and inadequate rainwater collection they are responsible for, I had a simple choice of (a) waiting and monitoring my house wall on every occasion it rains in anticipation of water damage being caused, or (b) putting my neighbour 'on notice' that they needed to resolve their poor decision NOW rather than wait for actual damage to occur.

Give it some thought...!

Appreciating your understanding and long writing. We did all you suggested including writing to them and presenting videos showing the gutter’s leaking, apart from taking forceful action to remove the gutter ourselves. We are very cautious about this point.

You are very right about the LP part. I do have LP and I did approach LP in 2018, but I had to go with the solicitors they chose and the solicitors weren’t specialised/interested in “minor” infringement for their cost. I would argue: for a gutter trespass like in this case, how major can it be? Does that mean everyone can hang their gutter on neighbour’s land because 5” will never be major?

Being considerate to others and for our own wellbeing, we paused our discussions during the pandemic. Now the situation is getting us into more anxiety.

In that case you need to go BACK to your LP, insist on a specialist solicitor to do with boundary issues, cite 'trespass property damage', and inform them that this is not just about trespass, but actual damage being caused to your house as a result.

Explain the 4 situations mentioned in my post. If they are reluctant to act now, explain you'll almost certainly be back when actual damage has been caused, and that will be a larger case to resolve.

(Don't tell them about the possibility of removing the gutter...)

If they still fail to take this up, then escalate it - ombudsman.

I'm pleased there was a valid reason for the 2-year delay.