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Stuart J
Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 20875
Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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My neighbour has raised the ground level of her garden by at

Customer Question

My neighbour has raised the ground level of her garden by at least four foot (3yrs ago)and used my boundary wooden fence as a retainer.The fence has now rooted and needs replacing. The ground level was raised by levelling a bank that was present across the back of the garden. Which means that not only is there a four foot high difference her side but has also left my bank exposed. Am I right in think that my neighbour would be legally responsible for retaining the difference in ground levels? If so is she also legally responsible to retaining my bank as it was her actions that caused it to become exposed.
Secondly, the fence is constructed of wooden fence posts and feather boards. Her side is feather boarded too for aesthetic purposes but are attached to my fence posts. After a discussion with my neighbour, I've explained that to replace the fence it would need a retaining wall otherwise the fence would root again. She excepts no responsibility for retaining her garden which is now encroaching on my boundary and also insists that if I am to put right my fence, then I must secure her garden to its current state. Is that correct and would I have to feather board her side also?
Submitted: 2 years ago.
Category: UK Law
Expert:  Stuart J replied 2 years ago.

It might have been an idea to point this out to her when she was doing the work, because at that stage, you could have got an emergency injunction to stop her.

However ...

Assuming that the ground, which he removed and your ground, which is now exposed has been there for more than 20 years, then you have the right support from her land and he/she wishes to remove something which removes that support, she is faced with making arrangements to retain your land. After 20 years, you were probably acquired a prescriptive easement/the right to have your land supported. To exaggerate, she cannot excavator quarry right next to your land and allow your land to fall into it with impunity. The situation with the bank, which she removed is no different.

 

The situation with the fence is completely the opposite. She's not allowed to build up her land and expect you to support it. If the fence is yours or joint and it rots.she is liable repair it . If you can improve that it is rotted through her negligence, piling dirt against it. Using a similar analogy to the quarry, she cannot put a slag heap on her land which spills over onto yours (as would happen here) and expect you to retain it.

 

There is a further issue here, and that is if she builds a retaining wall, she can only build it on her land if you do not give consent for it to straddle the boundary.

 

So, there you have the legal situation. Check your house insurance deceive you have legal expenses cover which would pay for any legal costs. Get a solicitor to write telling her to make arrangements to support your land and to make arrangements to support her own land, failing which you reserve the right to make an application to court for an injunction to compel her to do it, for damages for the trespass of any soil, which goes over onto your land, for damages in respect of the rotten fence and court costs.

 

On these facts, she simply cannot do what she has done.

 

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Customer: replied 2 years ago.
Thank you for your prompt reply.
I need a bit more information please.
We did actually make a complaint to our local council at the time of the change of garden layout. They stated that my neighbour had not broken any planning laws as she had not brought any addition earth into the garden, simply moved what was already there. They advised us to seek legal advice regarding the retaining wall. We did not do this at the time because we did not want to create bad feeling between us and our neighbours. It is however, 3 years later and we are now suffering the adverse effects of the move.

I am grateful for your response regarding the retention of the earth both my side and hers, as I have a legal right to ask her to retain her land and mine?
The other issue we have is that the fence is clearly rotten now and is becoming a saftey hazard, however my neighbour has feather boarded her side of the fence and she will not allow me to remove it as she states that I would be responsible for securing her feather boards. Am I right to think that the feather boards should not have been attached to my fence with out permission? If so am I within my legal boundries if I remove the fence which would have to include her feather boards as they are attached the main structure of my fence?
The discussion we had regarding this matter ended badly on Wednesday and my neighbour became quite abusive. She has since sent me a letter stating (amoung other things) that I must return her garden to it's current state if I am to carry out maintainence. Do I now reply to this letter or do I go straight to a solicitor to write one for me? I do not want to be seen as unreasonable and really don't know the best way to move forward.
Customer: replied 2 years ago.
Oh and how do I rate your answer?
Expert:  Stuart J replied 2 years ago.

You should now see a button allowing you to rate my answer. For some reason my answer went down as an information request and not an answer and that is why there was no button.

She should not have attached the feather boards in the first place, any nails into your posts are trespass and it is potentially criminal damage if she knew that she should not have done it. However, that does not give you the right to remove them, but it does give you the right to make her remove them, with a court order, if necessary.

With regard to your returning the garden to its current state after maintenance, that would be the case had she not done what she has done.

If he is entitled to remove the support from part of your garden, there should be no reason why you cannot remove it from hers. In law, that does not work, of course, because just because she's done something does not mean that you can.

I would try one more letter and if that fails, your solicitor needs to write the snottiest letter that his computer will generate.

Can I help further

 

 

Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 20875
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street practice
Stuart J and other UK Law Specialists are ready to help you
Customer: replied 2 years ago.
Thank you very much for your assistance. I think you have answered all of my concerns. I am very grateful. One last thing, there were feather boards attached to the other side of my fence prior to us owning the property. Does that make a difference to my right to ask her to remove them?
Expert:  Stuart J replied 2 years ago.
Provided they have not been there for more than 20 years, you can still ask for them to be removed. Good luck.

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