Neighbour Disputes information in this section:
- Enforcement of Restrictive Covenants
- Enforcement of Easements
- Adverse Possession
- Nuisance And Trespass Claims
- Boundary Disputes
- Right To Light Disputes
Enforcement of Restrictive Covenants
What is a restrictive covenant?
Restrictive covenants are agreements between parties that one party will restrict the use of its land in some way for the benefit of another’s land. Restrictive covenants are enforceable by the original contracting parties as well as their successors in title.
Restrictive covenants may:
- Limit possible uses of the land.
- Prohibit particular trades or businesses.
- Forbid certain activities particularly if they will cause a nuisance.
- Restrict type and number of buildings that can be built on a site.
- Require observance of a building line.
- Restrict the height of buildings.
Is the restrictive covenant enforceable?
Under contract law, a restrictive covenant is generally enforceable between the original contracting parties. However, there may be situations where this does not apply. For example, where:
- The covenant is uncertain or ambiguous;
- The covenant is prohibited by competition law;
- The covenant is contrary to public policy or contravenes a law;
- The covenantee assigns the benefit of the covenant to a third party.
Enforcement by successor in title of benefiting owner
If you are a successor in title trying to enforce a restrictive covenant there are a number of points you need to check before proceeding.
1. Does the covenant “touch and concern” or relate to the land owned by you? The case of P and A Swift Investments v Combined English Stores Group plc sets out the definition of “touch and concern”. A covenant will “touch and concern” the land where all of the following apply:
- The covenant benefits the owner of the land and would cease to be of benefit if separated from the land.
- The covenant affects the nature, quality, mode of user or value of the land.
- The covenant is not expressed to be personal.
2. That you are the legal owner of the land or a person who has an equitable interest in the property for example a beneficiary under a will or a trustee in bankruptcy.
3. That the benefit of the restrictive covenant has passed either by annexation, assignment or under a scheme of development.
Enforcement against successor in title of burdened owner
If you are trying to enforce a restrictive covenant against a successor in title who has the burden of the restrictive covenant, there are a number of points you also need to check.
1. Is the covenant negative? Only negative covenants (i.e. those that restrict the use and enjoyment of land) are enforceable in equity against successors in title.
2. Was the covenant correctly registered?
3. Was the covenant originally taken out to protect the land owned by the original covenantee?
4. Does the covenant actually benefit the land owned by the person seeking to enforce it?
5. Was it intended that the burden would run with the land?
6. Has there been any common ownership of the land since the covenant was imposed?
7. Has there been an unbroken chain of indemnity covenants between the original parties and the successors in title?
Remedies available for breach of a restrictive covenant
The common law remedy for breach of a restrictive covenant is damages. However, a person with the benefit of a restrictive covenant is more likely to want to stop the breach from occurring by obtaining an injunction from the court. Therefore, in most cases, it is equitable relief that is sought. Also, where an action is being brought against a successor in title to the burdened land, only equitable remedies are available.
The court can refuse to grant an injunction where the party with the benefit of the covenant has delayed in taking action. Where an injunction could be granted, the court still has the power to award damages in lieu where all of the following apply:
- The injury to the claimant’s rights is small.
- The value of the injury can be calculated in monetary terms.
- The injury can be compensated for by a small payment being made.
- It would be oppressive to grant an injunction.
It may be possible to negotiate the release or variation of the restrictive covenant. This should be attempted where:
- The restrictive covenant does burden the land.
- The full extent of the land relating to the restrictive covenant can be established.
- All owners of the benefiting land can be found.
- The restrictive covenant is still enforceable.
- The proposed development or activity will breach the restrictive covenant.
Indemnity insurance can also be obtained to protect against the risk of a person benefitting from a restrictive covenant from enforcing it. Usually the cover is for an indefinite period, is a one-off premium and will cover successors in title and mortgagees of the policy holder.
If the covenant is enforced, the insurance company will usually pay the insured’s costs of defending the action, pay damages to the person benefitting from the restrictive covenant and pay compensation to the insured if a planned development or activity cannot continue due to the restrictive covenant.
If an agreement cannot be reached about a restrictive covenant or insurance obtained, an application can be made to the Upper Tribunal (Lands Chamber) for the modification or discharge of the restrictive covenants.
Our team of property litigation solicitors have experience in dealing with the enforcement of restrictive covenants. Please do not hesitate to contact a member of the team to discuss restrictive covenants further.
Enforcement of Easements
What is an Easement?
An easement is a right benefiting a piece of land e.g. the right to use a path or run services over land. This type of easement is sometimes called a positive easement.
Remedies available if an easement is interfered with
What constitutes interference with an easement will depend on the circumstances. Common interferences are:
- Obstructing a right of way
- Deprivation of rights to light
- A landlords’ rights to redevelop land.
The remedies available for interference include:
- Declaratory relief. This is a declaration by the court confirming the existence and extent of the easement. This is a useful way of confirming the rights and duties of the respective parties without the need for punishing the misbehaving party by way of an injunction or damages.
- Injunctions. This is an equitable remedy granted at the discretion of the court. There are three types of injunction – mandatory (which orders the defendant to do something), prohibitory (which orders the defendant to refrain from doing something) and “quia timet” (which orders the defendant to act to prevent further harm from occurring). Injunctions are only granted where damages would not be an adequate remedy and can be a very effective remedy.
- Damages. This is a tortious remedy. Damages for trespass or nuisance are calculated in order to compensate the claimant for the loss actually suffered. If the claimant has suffered no loss, claimants can still recover nominal damages. Generally speaking, where an easement has been interfered with, damages will arise from direct damage to the claimant’s property, loss the claimant has suffered due to not being able to use its land, consequential losses flowing directly from the interference, stress, worry and anxiety suffered by the claimant and exemplary damages where the defendant will make profit from its actions.
- Abatement. This is a common law remedy which enables one party to enter another party’s land in order to put an end to the interference. Abatement can only be used where a nuisance exists e.g. abatement can be used to lawfully remove an obstruction that is blocking a right of way. It is important to note that a party who exercises its right of abatement can also seek other remedies e.g. damages, declaration or an injunction.
Our team of property litigation solicitors can advise on the remedies available to stop the interference of an easement. Please do not hesitate to contact a member of the team to discuss further.
Adverse possession is where a person who is not the legal owner of a piece of land can become the legal owner by occupying the land for a specified period of time (either 10 years or 12 years depending on the circumstances).
There are two elements to be established in making an adverse possession claim:
1. Uninterrupted use of the land for the requisite period (“factual possession”); and
2. Intention to possess the land during that period (“intention to possess”).
In respect of unregistered and registered land where the period of possession relied upon ends before 13 October 2003, a squatter needs to have been in possession of the land for 12 years.
However, under the Land Registration Act 2002 (LRA 2002), which came into force on 13 October 2003, the period of occupation need only be 10 years. Please note that the provisions of the LRA 2002 only apply to land registered at the Land Registry.
In order to establish factual possession, a squatter will need to have a sufficient degree of exclusive physical control over the land. This will depend on the individual circumstances of the case and in particular the type of land that is being occupied and the manner in which the land is being used. There is no requirement that a squatter’s possession is apparent to anybody else who comes onto the land.
The legal owner of the land will only have to take back possession of the land for a very short time in order to disrupt the squatter’s adverse possession of the land. However, this is different to the legal owner challenging the squatter’s possession.
Intention to Possess
Squatters will need to establish that they intended to possess the land during the relevant period of possession. There must also be an intention to possess the property in the squatter’s own name, on its own behalf and excluding all others.
It should be noted that an intention to possess at the exclusion of all others is not the same as an intention to own or acquire ownership of the land.
Adverse Possession Contravening Statutory Provisions
Case law has suggested that it will be difficult for a squatter to establish adverse possession if the possession contravenes a statutory provision. For example, it is unlikely a squatter could establish adverse possession over a public highway as this would contravene section 137 of the Highways Act 1980. This makes it illegal for any person without legal authority to deliberately obstruct a highway.
DEFRA has also issued guidance on adverse possession claims. DEFRA’s view is that:
- Where adverse possession of common land equates to a civil wrong but does not give rise to a criminal offence then title to common land can be acquired by adverse possession.
- A claim of adverse possession of a registered town or village green cannot be successful as trespassing on a town or village green is a criminal offence under section 29 of the Commons Act 1876.
Squatting in a Residential Property
This is a criminal offence under section 144 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPOA 2012). A person will commit a criminal offence if they:
- Enter a residential building as a trespasser.
- Knows or ought to know they are a trespasser.
- Is living in the property or intends to live there for any period of time.
Squatters’ Human Rights
There has been case law as to whether Article 1 of the European Convention on Human Rights (ECHR) encroaches on the provisions in the Limitation Act 1980 and the Land Registration Act 1925 (as amended) which deal with adverse possession.
Article 1 of the ECHR states that “every natural or legal person is entitled to peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law”.
This issue has been considered by the Court of Appeal, the House of Lords, the European Court of Human Rights and the Grand Chamber. Ultimately, it has been decided by the Grand Chamber that land acquired via adverse possession does not violate the provisions of Article 1.
Our expert property litigation solicitors are able to advise on the issues surrounding adverse possession. To discuss this issue, please contact a member of the team.
Nuisance And Trespass
Owners of neighbouring properties often get embroiled in disputes as a result of one of them interfering with the other’s land. Examples of these types of dispute are where tree roots encroach onto neighbouring land, where a wall is encroaching onto neighbouring property or there is excessive noise or unpleasant smells coming from one property.
These types of matters in law are described as a nuisance or a trespass.
There a two types of nuisance, (1) public nuisance and (2) private nuisance. A public nuisance arises from an act that endangers the life, health, property, morals or comfort of the public. A private nuisance is normally where a person is doing something on their own land that they are entitled to do but it becomes a nuisance when what they are doing extends onto their neighbour’s property and causes an interference with the neighbour’s enjoyment of their property.
The law distinguishes between activities that cause physical damage to the land for example as a result of tree roots encroaching on the land and activities that cause interference with the comfortable and convenient enjoyment of land for example, noise and smells.
Trespass is the unlawful occupation of land by somebody other than the owner of that land. Examples of trespass include squatting but can also be where a neighbour builds a wall on land owned by their neighbour or somebody encroaches on your airspace.
If a nuisance or trespass has arisen then it is possible to apply to the Court for an injunction to prevent the nuisance or trespass from continuing and causing future harm. Furthermore, damages are often sought to compensate for any harm that has already been caused.
Myerson Property Litigation has a wealth of experience in advising on both nuisance and trespass disputes. These areas of the law are technical and expert advice should be sought. Myerson Property Litigation will provide practical solutions to assist you in resolving any dispute.
Disputes between neighbours over the position of boundaries are not uncommon. Unfortunately the law in this area is complex, and the position of the boundary is usually finally determined by instructing an expert surveyor to consider the title documents, title plans, old photographs, witness evidence from predecessors in title, and the property itself.
However, this often does not provide a definitive answer, as the owner of the neighbouring land may find an expert that disagrees with your expert.
Further complications can arise if the boundary has been moved over the years, physical features (such as hedges, fences and walls) have been put in place or changed, or if there is an agreement in place varying the boundary.
The Land Registry plans, and ordnance survey maps, although providing good guidance, often only mark the “general position”. The width of the lines drawn on these plans can often equate to meters on the ground, and often, therefore these plans are of limited assistance.
There may be issues of adverse possession.
This is a complex area of law, and if you anticipate, or are involved in, a dispute with your neighbour over the position of a boundary, you should seek specialist legal advice at an early stage.
Right To Light Disputes
A right of light is a right to enjoy natural light that passes over somebody else’s land and then enters into your building through apertures such as windows. It is a type of easement.
There are a number of different ways that rights of light can be acquired and each case would depend upon its own facts. It is often necessary for the parties to appoint a surveyor together with a solicitor to advise on the merits of any claim for or defence to a claim for right to light.
Once it has been established that there is a right of light then it entitles the person benefiting from that right to receive enough natural light through the windows to allow the space behind the window to be used for its ordinary purpose. Consequently, the purpose for which the space is used will depend upon how much light the beneficiary is entitled to receive.
It is important for developers and architects to consider whether surrounding properties have a right of light when developing a plot of land.
The Merson Property Litigation department are happy to advise on the merits of any right to light claim and prepare any necessary documentation such as deeds of release should an agreement be reached whereby neighbouring owners give up such rights.
How We Can Help
A member of our specialist team will be happy to help.
To discuss Neighbour & Boundary Disputes issues, please either use the contact form on the right, email us at firstname.lastname@example.org or call us today on +44(0)161 941 4000 to speak to a member of our team.