Head 22: Neighbour Law Flashcards
Who owns a tree?
Trees are owned by the person on whose land the stem is located.
What are the different possibilities regarding boundary walls / fences?
There are two types of boundary fence or wall.
Either:
(1) wall [Wall here refers to walls, fences etc etc.] built wholly on one side of the boundary or
(2) wall straddles boundary.
What are the rules if you wanted to erect a new wall or fence?
If you want to erect a new wall or fence you must pay for it yourself, and erect solely on your own ground[ Otherwise this would be an encroachment.], unless consent of neighbour obtained (or there is a real burden which says you must build and share the cost with your neighbour).
An owner is entitled to erect a Type 1 fence or wall subject to legal restraints such as planning law and real burdens. While a Type 2 fence usually requires the consent of both landowners.
But the March Dykes Acts 1661 and 1669 applies to rural subjects of 5 acres or more and here you can apply to the court to have your neighbour pay half the cost of the boundary structure. The court has a discretion as to whether to make an award. These Acts are not widely used but there was a fairly recent case:
⁃ Corrie v Craig 2013
Corrie v Craig 2013
One party wanted his neighbour to pay half the cost of erecting a dry-stane dyke (a wall built up of stones.) However the other party had actually erected a stock proof fence on the boundary (so there was already a fence in place). The Sheriff held that this was good enough and it was not reasonable to expect the neighbour to pay half the cost of a more fancy boundary structure.
How is ownership of boundary structures governed?
Ownership of boundary structures is governed by accession.
⁃ So in case (1) above A owns the whole wall because it’s solely on his land.
⁃ In case (2) above A owns the half on his side and B owns the half on his side to the middle line. In neither case is the wall common property. But with type (2) walls there is common interest in the part which you do not own.
- You have a right of common interest in the common bit.
What are the rules regarding maintenance of boundary walls?
In type (1) walls it is up to A to maintain the wall. (And B cannot demand repair).
In type (2) walls there is a common interest obligation (NB positive obligation) of support (e.g. they both must contribute to maintenance)
⁃ If common interest obligation not complied with, the other owner can carry out the work and recover cost. See Newton v Godfrey (2000)
⁃ Common interest is a default rule which may be replaced/supplemented by real burdens.
- NB neighbours are free to agree between themselves as to maintenance and paying for the cost thereof.
- Where March Dykes Act 1661 applies, it enables an owner to ask the court to require the neighbour to pay half the cost of repairing or rebuilding the fence or wall. The 1661 Act only applies where the fence or wall was originally erected by court order under the Act.
What is common interest?
Common interest = reciprocal obligation by which A must support B’s part of the wall and B must support A’s part of the wall, implied by law, much like an implied community burden. But not a title condition within the 2003 Act.
Common interest is a duty under the common law. It is similar to an implied community burden. It does not require express provision. Because there is no express provision it is a title condition
If the common interest is not complied with the other owner can carry out the work and ask for payment of the cost. See Newton v Godfrey (2000).
What are the rules concerning alterations of boundary walls?
⁃ In type (1) walls A can alter the wall (subject to real burdens).
⁃ In type (2) walls alterations to your part must not endanger support (common interest restriction).
If the wall or fence straddles the boundary there is a common interest restriction. The position is that you are not allowed to alter your part if that will endanger the support of the other part.
Thom v Hetherington 1988
⁃ Involved two neighbours between whom there was a brick wall. It was a type 2 wall (straddled the boundary). The neighbours didn’t get on. The roots of the first neighbours cherry tree had spread under the wall to the second neighbour. The second neighbour poisoned the tree. The second neighbour then became worried about the first neighbours dog (which he described as uncontrolled and neurotic and thought it might jump from a coal bunker and attack his wife.) So the second neighbour threw some coal at the dog. The first neighbour then built a 6 foot fence on her side of the wall when the other neighbour was out. The other neighbour went to court and argued that the fence weakened the wall because: 1) parts of the foundation had been moved so that the fence post could be inserted, 2) the posts were bonded to the brickwork which arguably put the wall under strain.
⁃ The court found against him on - it was held to be a matter of degree. Lord Jauncey stated:
⁃ “The presence of the fence up against the wall would only have been actionable if such pressure impaired the strength or interfered with the stability of the wall .. Such impairment or interference must in my view be measurable and not merely negligible. It is beyond dispute that the owner of one side of a garden wall would be entitled to insert nails or rose ties into the mortar for the purpose of training roses up it. Theoretically every intrusion into the mortar must weaken the bond which it creates between the bricks, but it is equally clear that the court would not restrain the owner from so acting.”
There was a brick wall on both sides of the boundaries. The wall straddled the boundaries. The neighbours did not get on. The routes of the first neighbours cherry tree had spread under the boundary. The second neighbour poisoned them. The second neighbour then became worried about the first neighbours dog and thought it might attack his wife. He threw coal at the dog. The first neighbour then built a 6 foot fence on her side of the wall when the second neighbour was away. The second neighbour then went to court arguing that the fence weakened the wall. This was for two reasons:
(1) part of the foundations had been removed so the fence post could be inverted
(2) the post were bonded (glued) to the brick work arguably putting the wall under strain.
The court disagreed and said it was a matter of degree or facts. “The presence of the fence up against the wall would only have been actionable if such pressure impaired the strength or interfered with the stability of the wall .. Such impairment or interference must in my view be measurable and not merely negligible. It is beyond dispute that the owner of one side of a garden wall would be entitled to insert nails or rose ties into the mortar for the purpose of training roses up it. Theoretically every intrusion into the mortar must weaken the bond which it creates between the bricks, but it is equally clear that the court would not restrain the owner from so acting.” (per Lord Jauncey at 728)
What are the rules concerning common gables?
There are similar rules for common gables (walls between two buildings). The rule is that you own to the midpoint of the common gable (ad medium filum).
What is encroachment?
Encroachment is the permanent or quasi-permanent possession of part of another’s land without consent. The effect is to interfere with the right of possession of the owner or other occupier of the land and thereby commit a delict.
Encroachment is always done by things, e.g.
- By buildings [E.g. A neighbour builds beyond his limits or boundaries]
- By use of another person’s building for signpost or other object
- By spreading roots or overhanging branches
- By depositing rubbish or other moveable property
Duke of Buccleuch v Magistrates of Edinburgh (1865)
Encroachment by a building:
The encroachment in this case were the pillars built on the pavement of Assembly rooms in Edinburgh. The Magistrates of Edinburgh owned the pavement and raised an action to remove the pillars. [Continued below].
The pillars of the assembly rooms are an encroachment on to the pavement.
*Anderson v Brattisanni’s 1978
Encroachment by by use of another person’s building for signpost or other object:
Involved a fish and chip shop in Tollcross. The owners of the shop attached an external flue up the tenement wall to take away the smell. The person who owned the tenement wall objected. They didn’t own the tenement wall above the shops.
In this case the wall which the flue was going up was windowless so it couldn’t be seen from the objectors property. And the flue was essential to extract the fumes and smells from the shop so the court accepted that it was impractical for it to be located elsewhere. And without the flue the shop couldn’t function under health and safety law. And the flue had been in place for 9 years and permission for it had been granted by the objector’s predecessor. Thus the court was persuaded by all these reasons not to order removal.
- The court can make an order for removal but only where ‘the removal would be attended with unreasonable loss and expense, quite disproportionate to the advantage it would give to the successful party’. Jack v Begg (1975)
- By conveyance of the relevant section of land to the encroacher, but this requires the neighbour’s agreement.
in this case the flue could not be seen from the property as it was windowless. The flue was essential for the extraction of the smells from the shop and it was impractical to locate it elsewhere. Without the flue the chip-shop would have been forced to close. The flue had been there for 9 years and permission for it being put there had been given by the objectors predecessor. The court refused to order removal
Halkerston v Wedderburn (1781)
The defender was ordered to prune the branches of his trees that were overhanging into his neighbours property.
Is encroachment a delict?
Encroachment is a delict. In principle it does not matter if the encroachment is trivial - it is still encroachment (however the materiality of the encroachment will affect the remedy)
