Legal Q&A: can I ask our neighbours to remove a fence built on our land while we were away?

Question: While we were away on holiday our neighbours put up a fence, which is on our land rather than on the boundary between the two properties. In fact, they seem to have encroached on our land by about a third of a metre. We bought our house three years ago and we have never had any issues with the neighbours before. We certainly had no idea that they intended to do this. How should we deal with them?

Answer: Your neighbours should have discussed their intentions with you before they did the work. Check your title documents to see the position of the boundary and whether boundary ownership is mentioned — but note that the red line on Land Registry title plans is deemed to indicate a general boundary only, unless the boundary has been determined.

Speak to your neighbours in the first instance and ask them to reposition the fence in the correct place. You could offer to sell them the land or suggest the fence can remain temporarily, provided that when it needs replacing it is erected on the original boundary. If that fails you could take court action against them but that is likely to be costly and stressful.

Check if you have the benefit of legal expenses insurance policy on your home insurance, which may assist you with a claim.

If you do nothing, you risk a future claim by your neighbours based on adverse possession — ie they could try to claim ownership of the land upon which they have encroached. To avoid this, give them notice that they are encroaching on your land and — if you are prepared to consent to it — provide your consent but reserve the right to terminate it at any time and require the fence to be repositioned on the original boundary.

Make sure you write to these neighbours periodically to renew your consent. Should they sell up and move, give the same notice to the new owners.

What's your problem?

If you have a question for Fiona McNulty, please email legalsolutions@standard.co.uk or write to Legal Solutions, Homes & Property, London Evening Standard, 2 Derry Street, W8 5EE. We regret that questions cannot be answered individually, but we will try to feature them here. Fiona McNulty is a solicitor specialising in residential property.

These answers can only be a very brief commentary on the issues raised and should not be relied on as legal advice. No liability is accepted for such reliance. If you have similar issues, you should obtain advice from a solicitor.