Accessing neighbouring land to carry out work to your own property
What happens when you need to carry out repairs and maintenance to a part of your property which can only be done by you accessing it from your neighbour’s land?
Easement
You should firstly always check your deeds to see whether you have any easements which entitle you to access their land to carry out necessary works. If your title deeds contain a covenant allowing you access then you are entitled to do so without needing to approach your neighbour for consent (although if it is likely to be protracted works then out of courtesy you may wish to notify them of your plans). If there are no covenants in your deeds then you need to consider whether or not an implied easement has arisen, for example, where access has previously always been enjoyed over a period of time without objection by your neighbour.
By agreement
In the absence of any formal rights either expressly provided in your deeds or by implied consent, you could approach your neighbour to see if they will simply agree to allow access. If it is minor work which can be completed quickly then this could be achieved by obtaining oral consent on occasion but if it is intended to be complex and protracted work (and especially where there is a risk of damaging your neighbour’s property) then you may wish to consider setting up a formal agreement documenting the terms of the consent being granted.
Rights under the Party Wall Act 1996
There are certain situations where you may be able to use the rights available under the Party Wall Act 1996 to enter onto a neighbour’s land to carry out works but these are limited to situations such as where the works involve a party structure or where you are excavating a site up to six metres from neighbouring buildings. Assuming you are engaging the Act by serving the appropriate notice on the adjoining owner then you have a right to enter the adjoining owner’s land to carry out the works (providing at least 14 days’ notice has been given).
Trespass
Sometimes a person might decide to enter onto their neighbour’s land to carry out works despite having no right to do so. It is not recommended that you do this especially where there are other methods available to you as set out in this article. Trespassing should be avoided as by doing so you may find that your neighbour takes action against you for damages and an injunction preventing your further access.
What happens if none of the options above are available to you?
An Act called the Access to Neighbouring Land Act 1992 allows a person to take more formal action by applying to the Court for an order granting you access. In order for you to be successful in obtaining the necessary order it is for you to convince the court that your reasons are valid for requiring it. This would include scenarios such as:
- The maintenance, renovation or repair of a property (or parts of it) in order to preserve it
- The clearing or repair of any sewers, drains, cables or pipes
- The removal or filling in of a ditch
- The felling of a tree, plant or hedge (or parts of it) which have died, become diseased or which have become insecurely rooted and unstable which is likely to pose a danger.
Put simply, the work must relate to the ‘preservation’ of an existing structure as opposed to granting permission to gain access to make it easier to construct a new development, such as a new conservatory or extension. You should be aware that even if you have been granted planning permission for a ‘new build’, this does not automatically give you the right to gain access to a neighbour’s land if parts of the work need to be carried out from their land so you would still need permission or an order from the Court allowing you to.
In deciding your application, the court will take into account whether the works are reasonably necessary, whether the work would be more difficult (or impossible) to carry out without entry and how much interference, disturbance or hardship your neighbour might suffer if granted.
The courts may refuse to grant an access order if they decide that in doing so, it could cause severe hardship to your neighbour, or that it would significantly reduce the enjoyment of their own land.
If an access order is agreed to by the courts then it must then specify exactly the work which needs to be carried out, the date work will commence and the date it must be completed by. It would also be your responsibility to pay any compensation to your neighbour, should they incur any financial loss, or put right any incidental damage that might result to their land or property as a result of the work you are having carried out.
Summary
It is always far better to try to reach an agreement than to have to incur the time and expense of court applications especially where there is no guarantee of success. If you are in a similar situation and would like us to review your deeds to establish what rights (if any) you have or just to discuss your options generally then please do get in touch.
Amanda Nudds | Solicitor | Litigation Department
Contact | 01328 852804 | email [email protected]
