by Helen Lisney, Legal Officer

Encroachments onto Local authority owned land are surprisingly common – e.g. some people whose houses back onto parks, open space, or fields owned by councils seem to think it is perfectly acceptable to increase the size of their gardens by moving their fences to incorporate the extra land. It is important that such matters are dealt with in a timely manner. Some encroachments remain undetected and can result in adverse possession being claimed.

Once you are made aware of an encroachment, the first step should be to talk to the occupier of the neighbouring property. It may a completely innocent mistake that can be resolved amicably either by the encroacher reinstating the original boundary, or if you have no current need for the land you may wish to enter into a licence agreement allowing the continued use but protecting the land for any future use and preventing an adverse possession claim.

If a simple chat cannot resolve the issue, I would suggest writing a polite letter to the encroacher, advising them that they have encroached onto your land and requesting that they remove the new boundary features and any of their property from your land and, if applicable, reinstate the former boundary, giving them a reasonable amount to time to do so.

If this does not work you should collate evidence of the encroachments and speak to your legal department/advisor who will review the evidence and decide on the best action to take moving forward.

The evidence your legal advisor will look at all of the evidence and in particular: –

-the title deeds to the Council’s land, together with those of the neighbouring land.

-Any previous documents available relating to ownership of the land

-Old photographs showing the previous boundary and use of the land in question

-Any evidence produced by the neighbouring property that they may be entitled to adverse possession.

The following relevant factors will also be considered when determining the appropriate course of action:-

-The degree of encroachment and the amount of land involved.

-The importance of the land being encroached upon – e.g. does the encroachment have wider implications on the future use/development of the land.

If there are areas of dispute that are ambiguous, you may wish to try and resolve the issues with the help of a mediator.  It that is deemed inappropriate due to the extent of the encroachment or the attitude of your neighbour, a legal letter should be sent to the neighbours advising them as follows:-

-They are in unlawful possession of council owned land (and providing the evidence to support the claim);

-They have a specified time (which should be reasonable in the specific purposes of the case) to remove their boundary structures and any other property from the Council’s land;

-Failure to carry out the specified reinstatement within the requisite timescales will result in legal action being taken against them;

-Any legal action would result in significant costs which would be payable by the defendant if the Council’s legal action were successful.

Past experience shows that in the vast majority of cases a legal letter will result in the encroachment being removed but if this is not the case then legal proceedings could be considered.