trespass, adverse possession ?

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    trespass, adverse possession ?

    I have an unusual situation…

    We live in a Victorian terrace. The ground floor of our neighbours is a commercial premise – take-away.

    The metal chimney runs up the side of the building at the back – right next to us.

    We have an issue with noise, smells etc – since a new powerful extractor fan was installed a few months ago.

    The cowl (top of the chimney) hangs over our property and drips down on to our balcony. The chimney has been there (we think) 20 years.

    So, here’s my question.

    We have asked that the chimney have a new cowl put on to reduce noise and fumes. The occupiers (not the landlord) have agreed to this and we hope that this will work.

    If it doesn’t work, we need to get the council involved.

    The chimney is actually held to the back wall by large brackets. These brackets are on our property. In fact the chimney itself is on our property (by about 3 inches I think).

    I’d like to know if we would be able to claim a trespass and have the chimney moved? – I know this would make life with our neighbours difficult and would be a last resort.

    There is no doubt in my mind that they are using our land, but would there be some case for adverse possession? It has been there for a lot longer than us and I wouldn’t want to threaten legal action without being able to back it up. The owner is, I’m told, a right *** and so I’d want to be quite confident.

    I’m happy to post pictures or more information if that would help? Thanks a bunch to anyone that can offer a bit of advice on this.

    #2
    Does the title deeds/lease have anything about the chimney?
    Who owns the freehold (if it's not you)?
    When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
    Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

    Comment


      #3
      Thanks for the reply.

      Lease has nothing about the chimney. In my view it was put up while the property was rented, although I have no way of knowing this for sure.

      Freehold - I'm co-owner.

      The chimney was there when we moved in, but it's only now that it is making so much noise that I can't get to sleep until it stops at about 11.15pm.

      Comment


        #4
        Oh, also.. I'm guessing there's a party wall issue here too, but as it has been there so long it might be irrelevant?

        I'm thinking that trespass is the most logical (after going through the council for nuisance)? Is there a time limit on small trespasses?

        Comment


          #5
          There are two issues here: trespass and nuisance.

          If the trespass has been going on for over twenty years permament rights have probably been obtained. In any event the encroachment looks to be minimal. This avenue is not worth exploring on its own, if for no other reason than that the problem will not go away if adjustments are made to put an end to the encroachment.

          The real issue is the nuisance. I think you need to concentrate on working with the neighbour to reduce the noise or the hours when the fan is in use. If there is no progress you can report the issue to the council. Taking proceedings for private nuisance has to be an absolute last resort.

          Comment


            #6
            Thanks for the help and advice. Kind of what I thought, but wanted am expert second opinion.

            It does seem odd that someone can basically build on to your land - not the end of a garden/ fence type issue - but right on to our balcony and then have this allowed simply due to time.

            This chimney actually drips fat on to our balcony too. I spoke to the local fire service and they were very interested in visiting them. Again I resisted this on the basis that I want to get it resolved amicably. No going back from creating a real problem between us.

            Comment


              #7
              Originally posted by rico1313 View Post
              It does seem odd that someone can basically build on to your land - not the end of a garden/ fence type issue - but right on to our balcony and then have this allowed simply due to time.
              The laws which allow the acquisition of rights over land by long user have two functions: One is to ensure that there comes a point where there is certainty - and as to that the law does allow more than sufficient time for action to be taken. The other is to correct the deficiencies of the conveyancing system and the failure of parties to property transcations (if not their conveyancers) to cover all the angles. The law really has to say that the same rules apply in all situations.

              Originally posted by rico1313 View Post
              This chimney actually drips fat on to our balcony too. I spoke to the local fire service and they were very interested in visiting them. Again I resisted this on the basis that I want to get it resolved amicably. No going back from creating a real problem between us.
              If the fire service are interested I think that needs to transcend all other considerations. If there is a fire hazard it needs to be eliminated. Call them in.

              Comment

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