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

jjc9

Bendy_House said:

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.

The suggestion is helpful. I will get on with it 

m0bov

You could raise a complaint with your insurance about the lack of progress. I've had poor experiences with legal protection before.

Sandtree

m0bov said:

You could raise a complaint with your insurance about the lack of progress. I've had poor experiences with legal protection before.

Doesnt sound like "lack of progress" but that the LE cover declined the claim. Most Legal Expenses cover has various clauses such as reasonable prospect of success but also that the cost of the claim are proportional to the damages. The firm appears to have determined is a trivial matter and so costs would be disproportional. 

Given it was 2018 its too late to raise a complaint to challenge the decision though no harm in trying. 

Personally think LE cover is reasonable price for the advice line but claims are relatively poor with cases very much cherry picked and not always the best panel solicitors used.

Bendy_House

A problem could likely be that the cost of correcting this installation will be high for the neighbour, and that may colour any judgement.

My personal take on this - and I hope jjc will emphasise this point - is that they informed the neighbour before they completed their roof that their proposed plan to fit an external gutter trespassing on jjc's land was objected to. ("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."

Ie, this was a deliberate and informed action by this neighbour and their builder. I sincerely hope they are forced to correct it.

The arrogance and presumption makes me want to spit.

Bendy_House

My understanding of trespass, when it comes to issues like a fence being placed on the other side of a boundary so it's in the neighbour's land, is that the wronged party can give notice to the miscreant neighbour for them to remove the fence they placed on the W-P's land, and - if they don't do so - the W-P can remove it and return it to its owner.

OR, possibly (I have read on here?), the Misc can be given notice that, unless they remove their property from the W-P's land, it will be considered a 'gift', to be done with as desired.

If that is the case, then... (I can dream).

steampowered

Regardless of the rights and wrongs of the situation, please consider this important question:

How much of your life and how much money do you want to spend fighting over box gutters?

You could go legal on this but if you took it all the way to court I suspect you could be looking at tens of thousands of pounds spent on solicitors.

penners324

Have you lodged a complaint with the planning department of the local council?

jjc9

I have now gathered some more information and advice. There are two aspects of the situation. One is the boundary dispute. Without a defined boundary line legally registered, the neighbouring party could do something further in the future or even claim our gutter trespass on their land. We cannot imagine what might happen if the situation is left unresolved for another 3/5 years. Resolution for boundary dispute is more based on evidence and we are confident of our rights. On the other hand, a judge has more factors to consider in granting an injunction to remove a trespass. As the neighbouring party had declined a joint boundary survey, I am getting help to have the legal boundary agreement part done first. It is going to be a long journey.  

jjc9

penners324 said:

Have you lodged a complaint with the planning department of the local council?

Council can advise but has no right to enforce issues with party wall, boundary dispute, trespass etc

j2009

Hi JJC9

When I read your post I felt very sorry for you. Not so much because of the gutter (because to be honest it's not that bad) but rather because the situation has escalated to the point it has.

I fear this may have become a battle based on principle rather than pragmatic judgement.

You may now have to go all in to 'win' because if you don't you may always feel like your neighbours won, they will keep the gutter and the gate and have their bins against your wall and you'll always know they damaged your fence. 

However, personally I wouldn't have battled it in the first place but now I'd try to find a way to accept if for what it is and live with it rather than fight, but we're all different. It's never going to cause you a problem and you never know when you might need your neighbours onside. 

Also, minor pedantry but you are saying they are trespassing with their gutter (and I'm not disputing that) but I am guessing you did too in order to put your fence up.

Good luck and if anything I have written niggles you I promise it wasn't intentional, just someone impartial offering a perspective with good intention.