Beware … even a small trespass of a few inches could prove to be very expensive
In a boundary dispute which went to court in 2023, the Judge awarded an injunction against the Defendants for a trespass of 2.68 inches (68mm) at the wall and an overhang of 3.86 inches (98mm) at roof level. The result of this was that the Defendants, Mr and Mrs Ashraf, were required to remove the trespass of their rear single storey extension. In addition, the Judge ordered Mr and Mrs Ashraf to pay not only their own legal costs but also the Claimants’ legal costs amounting to a total reportedly in the region of £200,000 !
Conduct of the parties
As often seems to be the case when injunctions are awarded by a court for what, at first glance, seems to be a relatively minor transgression (whether that be concerning a boundary or, for example, a right of light legal injury), in reaching the Judgement, reports seem to indicate that the Judge took into account the Defendants’ conduct in relation to this matter, which was apparently described by the Judge as “high-handed” and which amounted to a trespass. It was claimed in Court that the Defendants’ approach to this through the progression of the dispute in advance of Court was a “continued course of conduct intended to annoy”. It was also reported in Court that the Defendants had been notified at an early stage that their intended extension would encroach over the legal boundary but that this had simply been ignored by them.
A small trespass but with implications
From the Claimants’ side of the argument, they claimed that, although the trespass was small, a consequence of this was that their home was damp and mouldy because the Defendants’ extension was so close that it left no gap for air to circulate.
What can be taken from this?
The lessons from this appear to be that even a small trespass of just 2 or 3 inches can be sufficient for a Court to rule against the Defendant and award an injunction but it seems likely also that the conduct of the parties to a dispute can have a large impact upon the Court’s decision. Additionally, of course, something else to be drawn from this is the cost of Court action and the severe financial risks of this level of legal action; probably most people would agree that the legal costs awarded against the Defendants appear disproportionate in relation to the nature and scale of the dispute.
How Smith Marston can assist
Philip Smith deals with boundary dispute matters for Smith Marston. Philip has well over 20 years of experience of boundary disputes and is an RICS Accredited Expert Witness surveyor, with boundary matters as an area of expertise. This service is offered nationally from our various regional offices.
