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Trespass and boundary disputes

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Posted on 25 November 2013

Trespass is a “Tort”, an area of law that relates to actions against persons (such as assault), against goods (that relate to possession) and actions against land for which “Trespass” is more commonly known.

Trespass upon land relates to the unauthorised physical entry of one person onto another’s land.  Within the context of a boundary dispute; trespass is the basis of a claim a landowner has that his neighbour is encroaching upon his land.

Consider the following scenario:

Alan is the owner of a terraced property.  Alan’s garden shares a boundary with Bodrul that is marked by a wooden fence.

Six months ago, Alan moved the wooden fence onto Bodrul’s property. Alan subsequently planted roses in a flowerbed that abuts the wooden fence, which because of the new position of the wooden fence enjoy more sunshine.

Bodrul has discovered this and is claiming that the fence is not upon the boundary line.

Alan, by moving the fence and planting roses upon Bodrul’s land is trespassing on Bodrul's land.

Regardless of whether Alan is physically on Bodrul’s land or not, the simple act of Alan putting his belongings on Bodrul’s land is an act of trespass.

Bodrul is entitled to request that Alan removes the roses and returns the fence to its original position. If Alan refuses, Bodrul could issue court proceedings and apply to the Court for an injunction forcing Alan to return the wooden fence to the boundary line. 

Parties involved in a dispute are always advised to consider Alternative Dispute Resolution such as mediation, particularly where the costs of progressing a dispute may be disproportionate.

Wright Hassall’s Residential Property Disputes team is experienced in all matters relating to Boundary Disputes and Trespass.

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