knowledge 30 May 2018 |

An Age Old Question: How to Mend your Fence on Neighbourly Terms?

Every building, site or plot of land has boundaries. So how to work with those boundaries is a question faced by owners, developers and occupiers of all property types. Anything we do on our own lands must be considered in light of the impact it could have on neighbouring lands, its owners and its occupiers. The first step is to understand what a land owner is entitled to do.

The legal framework

The law seeks to provide a sensible framework to avoid a situation where one landowner can stymie sensible maintenance or development of a neighbouring property, while also protecting that owner’s own property from unreasonable interference or damage.  Previously, we looked to a number of older statutes and judicial authorities, but the Land and Conveyancing Law Reform Act 2009 (the “2009 Act”) introduced an updated and more centralised framework for carrying out works to structures, which mark the boundary between neighbouring properties.

The 2009 Act provides a wide-ranging, non-exhaustive definition of “party structure,” including any arch, ceiling, ditch, fence, floor, hedge, partition, shrub, tree, wall or other structure which divides properties.  It includes structures which straddle the boundary and structures, which are so close to the boundary (on either side) that it is impossible or not reasonably practical to carry out works to the structure without access to the neighbouring land.

The type of works authorised by the 2009 Act are also wide-ranging and include adjustment, alteration, cutting into or away, decoration, demolition, improvement, lowering, maintenance, raising, renewal, repair, replacement, strengthening or taking down.  Carrying out inspections, drawing up plans and performing other tasks in support of the actual works are also permitted.

However, works are only authorised under the 2009 Act if they are either to comply with a notice or order served on the owner; part of a development for which planning permission has been granted or which is exempted development; to preserve a party structure; or of a nature that would not cause substantial damage or inconvenience to the adjoining owner, or even if they would, that it is reasonable to still carry out those works.

Whilst the focus of this note is the regime under the 2009 Act, owners of property within the Dublin City Council functional area should also be aware of the separate statutory regime governed by the Dublin Corporation Act 1890 and consider the merits of proceeding under either regime, where both are available.

Who can avail of the rights under the 2009 Act?

The 2009 Act permits a “building owner” to carry out works to a party structure. A building owner is defined as “the owner for the time being of any estate or interest in a building or unbuilt-on land who wishes to carry out works to a party structure”.  This means that the rights under the 2009 Act can be relied on not just by the owner in the ordinarily understood meaning of that term, but also by occupational tenants and others with a sufficient interest in the property.  “Adjoining owner” is also similarly defined, which is important for a building owner to understand, when considering the obligations owed to adjoining owners.

With rights come responsibilities

The person carrying out the works has certain responsibilities under the 2009 Act including an obligation to make good all damage caused by the works or to reimburse the adjoining owner the reasonable costs and expenses of making good the damage.  An adjoining owner’s reasonable costs in obtaining professional advice in relation to the consequences of the works must also be paid, as must reasonable compensation for any inconvenience caused by the works.  However, the 2009 Act does allow the building owner to claim a contribution from an adjoining owner in respect of any works carried out, or deduct from any compensation payable a sum which takes into account the proportionate use an adjoining owner takes from the party structure.

Engaging with the adjoining owner

If the first step is understanding the law, the next is engaging with the adjoining owners who will be affected by the works.

The 2009 Act doesn’t reserve to an adjoining owner a right to consent to works which are permitted under the 2009 Act, but it does imply an entitlement for adjoining owners to be, to some extent, satisfied as to the impact of the works. This starts, more often than not, with an up-front, open conversation.

The 2009 Act ordinarily governs the parties’ rights and obligations in the carrying out of the works and will helpfully regulate low impact works without anything more. For more complex works however, the parties may need to supplement or alter the rights and obligations provided for in the 2009 Act by entering into a written agreement. In some cases, and in particular in shared developments, there may be title documents that govern works to boundary structures. Typically, a written agreement will incorporate plans and specifications and a method statement for the works and certain structural or other safeguards for the adjoining property including a commitment to reinstate and make good any damage caused. It may also involve a commitment to make a payment to the adjoining owner in respect of costs or inconvenience or both. While a written agreement will often reflect the principles of the 2009 Act, as a private contract, it is governed by contract law, rather than by the 2009 Act itself, and so will be implemented on its own terms.

What to do when an adjoining owner does not allow the works to proceed?

A building owner relying on its rights under the 2009 Act may apply to the District Court for a “Works Order” to authorise the disputed works.  If the Court grants a Works Order, it may attach terms and conditions. A building owner in dispute with an adjoining owner in relation to the implementation of a written agreement reached in respect of more complex works, will rely on its rights and remedies under the written agreement.

Conclusion

As a framework to facilitate works to party structures, the 2009 Act is very effective, setting important boundaries in legal terms around what is fair and reasonable.  To achieve the end goal an understanding of those legal boundaries, coupled with early and open engagement with all affected adjoining owners is key.