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Encroachment

Encroachment is an intrusion into a piece of ground, the air space above it, or into a building, by something:

  • which is not owned by the proprietor of the ground or building;  and
  • which has been installed without permission from the proprietor.

The most common example is overhanging trees and shrubs but other examples include erecting a wall or a fence on the wrong side of a mutual boundary and pipes and cables being run through a neighbour’s property.

Generally, an encroachment will have little impact on the proprietor and they usually occur because by the person who created it did not realise where his boundary lay.   However, even in these situations, the courts will usually protect the proprietor’s rights and order removal.    It is only in exceptional cases that the court may refuse removal and instead order payment of compensation.

Landowners who become aware of encroachments should take immediate legal steps to have it removed otherwise they may be deemed to have given consent.   While a proprietor may upset by an encroachment and will usually be anxious to have it removed, he should not interfere with it without authority from the courts.

As mentioned, the most common example of an encroachment is overhanging trees and shrubs.  Although householders will regularly trim back a neighbour’s hedge to the boundary line strictly speaking there is no automatic right in Scotland to do that.  It is therefore wise to speak to your neighbour before cutting back anything which overhangs your property.

For further information, please contact Tom Hempleman.

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